There are such things in the world as human rights. They rest upon no conventional foundation, but are external, universal, and indestructible. Among these, is the right of locomotion; the right of migration; the right which belongs to no particular race, but belongs alike to all and to all alike. It is the right you assert by staying here, and your fathers asserted by coming here. It is this great right that I assert for the Chinese and Japanese, and for all other varieties of men equally with yourselves, now and forever. I know of no rights of race superior to the rights of humanity, and when there is a supposed conflict between human and national rights, it is safe to go to the side of humanity.
. . .
The apprehension that we shall be swamped or swallowed up by Mongolian civilization; that the Caucasian race may not be able to hold their own against that vast incoming population, does not seem entitled to much respect. Though they come as the waves come, we shall be stronger if we receive them as friends and give them a reason for loving our country and our institutions.
The 2010 Supreme Court Term is underway and already has featured some high-profile cases, but it’s a case from 2009 that’s getting the most attention these days. Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), in which the Court struck down a provision of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155 (2002) (commonly, the McCain-Feingold Act), prohibiting the broadcast by corporations and unions of election-focused information in the days before a presidential primary or election, has been the subject of renewed discussion (which never really fell off dramatically following its issuance early this year) leading up to the elections that are now less than a week away. Critics of the decision are worried that virtually unbridled corporate and union campaign spending will have adverse effects on the democratic process. (Other critics are so upset over the decision that they are considering an attempt to impeach the Chief Justice in response.) More recently, some observers (including critics of a new series of U.S. Chamber of Commerce campaign advertisements) have latched onto the less directly presented issue of foreign funding in American elections, a question I raised in my initial report on the case. At that time, a poll showed that two-thirds of the readers of this site favored exclusion of campaign donations from foreign corporations.
With the ongoing goal of gaining a better understanding of the rationale behind singling out foreign financial influences for exclusion from American campaigns and the proximity of the mid-term elections, I hope interested readers will review the earlier post (here), which fleshes out the issue in greater detail, vote in the poll embedded in that post, and then offer comments here.
For the past few weeks I have been focusing my efforts on two research projects. One dealt with environmental regulation on the international level and is the subject of this post. The other explored a possible relationship between third-party litigation finance and health insurance and will be the subject of a forthcoming post. Each post will offer an abstract or other similar summary with the goal of presenting the core ideas of each ongoing project sufficient to allow for informed comments.
The international law paper, tentatively entitled “Greepeacekeepers,” proposes the development of international environmental criminal law on the basis of tort law’s unsuitable application to environmental harms and an extension of the logic of treating wartime environmental harms under a criminal law model within the law of war:
At least since the Industrial Revolution in the West and through the presently ongoing industrialization of the rest of the world, anthropomorphic environmental degradation has been on the rise. At the simplest level, environmental disputes sound in tort law. If airborne pollutants from a factory smokestack drifted to the farm next door, sickening livestock, the farmer could sue under a trespass theory. Waterborne pollutants flowing downriver from factory to farm would present a similar situation. Today, much of the environmental legal action in the United States deals with a more complex set of personal injury cases called toxic torts in which injured plaintiffs sue manufacturers of the chemical products that caused the injury. Federal and state statutes provide causes of action and civil damages for environmental injuries.
National boundaries need not contain pollution and environmental injuries. Rivers can carry toxins across borders, as can the air that flows freely above them. Products shipped internationally, as well as the boats, airplanes, and trucks that take them there, can facilitate environmental harms. A significant amount of environmental damage also takes place during war. Given the global scope of commerce and other human activities and the interconnections between regional and global ecosystems that operate irrespective of state borders, the environment is an appropriate area for consideration in international law.
Despite the traditional treatment of environmental injuries as matters of tort law, this may not be appropriate or sufficient. For a variety of reasons, environmental injuries and offenses may stretch the adapted civil actions to the breaking point. Some already have suggested that environmental damage should be a consideration within the law of war and treated with strict liability.
The logic that counsels against treating environmental harms as matters of tort law and in favor of strict liability for harms during wartime supports broader treatment of environmental harms under international criminal law.
On treating environmental harms under a tort model: “This traditional arrangement may be too confining in a case of injury from contact with toxic substances…. [Professor Palma] Strand identifies three differences between ordinary tort injuries and toxic substance injuries in this regard” that make it “unlikely that the victim would be able to sue under a standard tort regime”:
First, it often takes years for contaminants to migrate out of a disposal site into places such as water wells where people can be exposed to them. Second, many of the injuries associated with toxic chemicals, most particularly cancer, have long latency periods and do not manifest themselves for years or decades. Finally, even after an individual develops an injury that could have been caused by a toxic contaminant to which he has been exposed, it may be some time before he becomes aware of his exposure to the contaminant and of its potential connection with his injury. This situation is particularly likely when the injury is not caused solely by a specific toxic contaminant or when a person is exposed to a contaminant and develops a disease before the causal link between the contaminant and injury has been scientifically identified.
Palma J. Strand, The Inapplicability of Traditional Tort Analysis to Environmental Risks: The Example of Toxic Waste Pollution Victim Compensation, 35 Stan. L. Rev. 575, 575 (1983). These and other “points of tension between modern environmental harms and traditional tort actions suggest that the latter category is ill suited to redress injuries arising out of the former category….Strand’s conclusion, therefore, is that ‘the fundamental practical differences of toxic waste injuries mandate a fundamentally different theoretical approach to these problems.'” Id. at 587.
Douglas Lackey‘s work in the area of jus post bello— the postwar component of just war theory– lays a logical foundation for an international criminal approach to environmental harms during war and peace. His argument is “that participants in war have an affirmative obligation to restore the environment damaged by their military operations.” Douglas Lackey, “Postwar Environmental Damage: A Study in Jus Post Bellum,” 141, 141 in International Criminal Law and Philosophy, Larry May & Zachary Hoskins, eds. (Cambridge University Press, 2010). Lackey proposes a strict liability approach, with which he identifies three advantages: “1) actors can begin to clean up damage without admitting fault in jus ad bellum or jus in bello; 2) it treats the environment as international law already treats neutral parties; and 3) it recognizes the inherently destructive character of war.” See id. at 144. A criminal model is appropriate, on his view, because one can understand “a crime as ‘an injury to the body politic’ (and that which does not require an identifiable victim),” and “he explains that ‘damage to the environment can be viewed as damage to an international body politic, even absent particular victims, or real victims who fail to bring suit.’ This works, in part, because of special characteristics of the environment: ‘The environment is a delicate web that sustains us all, and a shock at one point vibrates out to all the other points.'” See id. at 147. The result of the application of this criminal model within the law of war, according to Lackey, will be “less destructive wars, because of the restoration requirement, its effect on military leaders calculating prospective losses resulting from war, and the related incentives to develop environmentally friendly weaponry.” See id. at 150-51.
The basic conclusion is that, if tort is not appropriate to handle environmental harms, and if a criminal model works for these harms within the law of war, it is possible to fashion an international criminal law regime for environmental damage.
Last month, the Supreme Court decidedCitizens United v. Federal Election Commission, 558 U.S. ___ (2010), holding that the First Amendment prevents the government from limiting political speech in the form of corporate funding of a feature-length film. The government cannot restrict certain disfavored speakers like corporations. Political speech is important to democracy regardless of the speaker. Specifically, the Court struck down a provision of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155 (2002) (commonly, the McCain-Feingold Act), prohibiting the broadcast by corporations and unions of election-focused information in the days before a presidential primary or election. Justice Kennedy’s majority opinion retained the Act’s relevant disclosure requirement and proscription of direct donations by corporations and unions to candidates.
The decision sparked substantial reaction in the days following its release, as people waded through the fractured decision (basically, 5-4 against the speech restriction, 8-1 in favor of maintaining the disclosure requirement, with five different opinions authored– Kennedy for the majority, Chief Justice Roberts concurring, Justice Scalia concurring, Justice Stevens concurring in part and dissenting in part, and Justice Thomas concurring in part and dissenting in part). President Obama added a new twist to the conversation when he weighed in on the decision in his first State of the Union Address, less than a week after the Court decided the case. With a majority of the justices present, sitting in the front row, the President noted his “due deference to separation of powers” and opined:
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
(Emphasis added.) At this moment, television cameras panned the audience, catching Justice Alito mouthing “not true,” apparently in response to the President’s assertion that “foreign corporations” are among those “special interests” for which the decision opened “the floodgates.” SCOTUSblog‘s Lyle Denniston highlights a relevant portion of the majority opinion:
That section said: “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.” The opinion then cited a provision of federal law[.] In essence, that provision bars any “foreign national” from making any direct or indirect contribution of money or anything of value “in connection with any federal, state, or local election[.”]
The clear implication of the phrasing is that the Court, in the future, might well uphold such a ban by finding that the Government did, indeed, have a strong interest in keeping foreign money out of U.S. campaigns, at any level of government.
The Court’s statement that it “need not reach the question” hardly “open[s] the floodgates.” At very most, it suggests that a majority of the Court is willing to overturn that provision, but a fair reading yields the simple position that the Court is not addressing questions it does not have to answer and is clarifying the scope of its holding. This is a common, widely accepted practice of the Court’s. Congressional Democrats nevertheless sprung to action. Senator Al Franken‘s office said that the President’s statement, quoted above, “urged…legislative action.” In explaining his decision to introduce restricting legislation, the release stated: “Nothing in our current laws, however, explicitly prohibits foreign companies from creating American subsidiaries or getting control of American companies and using them to flood the airwaves in support of their preferred candidates.” This assertion contradicts Denniston’s statement, quoted above.
Whether the first-term Senator or the journalist who has covered the Court for fifty years is stating the law accurately, a more interesting question persists: should we exclude foreign corporations from influencing American elections?
One starting place is to wonder whether exclusion is possible to a meaningful extent. Not only do many foreign corporations have a substantial presence in the U.S., many companies people think of as “American” actually are foreign-owned (e.g., Anheuser-Busch, Ben & Jerry’s, Trader Joe’s, 7-Eleven, Firestone Tires). If one is concerned about the influence of individual foreigners, the scope is even wider, expanding to include American corporations run by people born abroad (e.g., PepsiCo).
Others have speculated on the complexity of this subject, given globalization realities:
In a world characterized by high levels of political and economic interdependence, one wonders whether there can be any pure cases of domestic political change, untouched by significant external influences. The exceptions are likely to overwhelm any generalized prohibition of intervention based on the importance of allowing people to work out their own salvation.
Charles R. Beitz, Political Theory and International Relations 87 (Princeton University Press 1999) (1979).
Even if it were possible to craft legislation that could separate foreign corporations from domestic ones as a matter of identification, is this a desirable, justifiable distinction? The combination of the Constitution’s Article II § 1 and Twelfth Amendment limit eligibility of the offices of president and vice president to “natural born Citizen[s],” but no other office is so limited. Reasonable justifications exist for this restriction, but do they apply to a restriction on foreign influence in election campaigns? Is there a different basis for justifying the proposed exclusion? Or is it simply an easy way for those opposed to corporate spending in campaigns generally to cut back on a (possibly substantial) portion of it?
Justified or not, the issue of restricting foreign influence on domestic elections matters to people on both sides of the aisle. Before the recent legislative initatives by Democrats mentioned above, the Republican National Committee accused Obama of failing to disclose campaign donations from abroad, and foreign celebrities like Sir Elton John have involved themselves in U.S. presidential campaigns.
Finally, if we are concerned about foreign influence on domestic elections, should we be concerned about interstate influence on state and local elections?
There are reasonable intuitions as to why we would want to steel our elections from foreign influence, even if it it is a practice that Americans have engaged in abroad. Setting aside golden rule and reciprocity concerns about political intervention, the failure to enunciate a basis for exclusion impairs this debate.
Iceland is fascinating for many reasons– the geographically isolated country is geologically, ecologically, and culturally unique– and I am fortunate to have spent time exploring the land of the ice. One of Iceland’s many notable features is its language. Icelandic is a living language, meaning that Icelanders create new words for new things, rather than acquiesce in the name the new thing bears. Put another way, there is an Icelandic word for everything; the language adopts no foreign words.
English is not a living language and so provides an illustrative counterexample. Americans enjoy foreign cuisine, and when they refer to one of these non-domestic delights, they do so by using the food’s original name. They happily call a Mexican favorite “taco,” rather than some newly created American word meaning “folded flat bread sandwich.” By contrast, Icelandic roughly mirrors the latter approach.*
As the comparison with Icelandic demonstrates, English speakers adopt foreign words into their vocabularies as often as they learn about new things that originated in cultures of a different tongue. Sometimes these words come from languages that do not use the English alphabet. These words require a new spelling using English alphabet letters. For example, the word “photography” comes from Greek roots (photos (ϕοτοσ), light, and graphos (γραοσ), writing). Another example is the word “giraffe,” which etymologists trace through French to Arabic, and possibly to an African dialect.
My question: why do English speakers denote the “f” sound with a written “f” for words from some languages and a written “ph” for words from others? Because phonetics likely is the primary guide in the described written translation process, a difference in pronunciation probably explains most spelling decisions. In America, at least, “f” and “ph” have the same pronunciation, however, so if there is a reason for the difference, it must be something else. Is there an explanation for this particular spelling decision?
* This may not be exactly correct, but it is my basic understanding of Icelandic linguistics. If there are any Icelanders reading this, they should feel free to correct me in the comment section.
The last post took a small step toward the realm of international law, and this post takes another step in that direction. International law, broadly defined, encompasses a full spectrum of agreements, treaties, conventions, resolutions, and decrees, all of which can be formal or informal, binding or non-binding. Some components of international law actually look like laws and come from legislative-like bodies like the United Nations. Others look like rules from regulatory agency-like bodies like the World Trade Organization. Other parts of international law are agreements between two or more sovereign states, or even between subnational entities. It is not uncommon for treaties to establish an administering body to adjudicate disputes arising under the treaty. International law thus can come from preexisting international bodies designed to make law, or it can arise from cross-border relationships.
Some Americans pay little attention to international law. They may see its systemic flaws as insurmountable, believe that international bodies should not bind domestic activity, or question the real motives behind international governing actions. Others, however, recognize the imperfections of international law as it stands today, but see international and global agreements as a worthwhile avenue for positive development. One powerful American, Associate Justice Anthony Kennedy, is a noted proponent of the applicability of foreign and international principles to American law and life and sometimes cites these principles in his judicial opinions. His opinion for the Court in the landmark case Lawrence v. Texas, 539 U.S. 558 (2003), is a good example. In overturning Bowers v. Hardwick, 478 U.S. 186 (1986) and striking down a state sodomy statute, Justice Kennedy bolstered the decision to overturn the Bowers case (which upheld a state law that criminalized sodomy between consenting adults, in private, as applied to homosexuals) by pointing to foreign and international authority contrary to the Bowers holding:
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v United Kingdom. [Citing cases.]Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. [Citing amici curiae brief.] The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
Lawrence, 539 U.S. at 576-77. In this example, Justice Kennedy is drawing on these sources to present a sense of global compassion.
Karen Armstrong is interested in compassion on a global scale as well. Armstrong is a British theologian who won a TED prize in 2008. In response, Armstrong, a former nun and current student of the major religions of the world, developed and issued her Charter for Compassion. The core of Armstrong’s thesis is that some version of the Golden Rule appears in all religions, and the root of this common core is a shared notion of compassion.
As presented, compassion tracks the discussion of passive and active virtues ongoing here. See supra. Compassion might sound like a baseline attitude or ethos, or a background sensibility to be recalled in convenient moments. For Armstrong and her supporters, however, there is an active element of compassion, which is something to be affirmatively practiced. Participating in a series of short presentations in support of the Charter at the Chautauqua Institution, Sri Swami Dayananda Saraswati emphasized the active nature of compassion:
Armstrong’s hope is that individuals around the world will read the Charter and add their names to its long list of signatories. Seehere, here, and here for more information.
One way that many people act out compassion is by making financial donations to causes they deem worthy of support. Contributing the monetary fruits of one’s labor can be a meaningful act and can offer the recipient flexibility to advance its mission. Briefly, if you are looking for worthy recipients for a financial donation during this season, consider supporting the documentary film To Them That’s Gone and the Crohn’s & Colitis Foundation of America.
Finally and undoubtedly, an element of compassion is passion. As the year and decade come to an end, many find time to reflect on their lives, the lives of those important to them, the loss of life, and passion for life. Few have both argued for and demonstrated passion for life like the late Jim Valvano. He delivered the most famous speech of his life, the keystone of his enduring legacy, at the ESPY Awards in 1993:
Attorney General Eric Holder recently decided that the United States would prosecute alleged 9/11 mastermind Khalid Sheik Mohammed in federal district court in New York, rather than in a military tribunal. Critics of this decision have not suggested that there are legal barriers to this move, and Holder agreed that civilian and military courts are both available under the law. Rather, the debate has played out on policy grounds.
When called before Congress to explain his decision– one he made without personal consultation with President Obama– the Attorney General said he did it to restore the integrity of the American judicial system. Part of Holder’s explanation of this justification was that civilian deaths outnumbered military deaths in the 9/11 attacks. He also said that the federal government, rather than New York, would bear the cost of the trial, which he estimated at $75 million for the first year.
If the Attorney General is trying to restore the integrity of the American judicial system, does it make sense to try Mohammed in civilian court? While our civilian judicial system is under daily attack by scholars and academics for perceived inefficiencies and arguably inappropriate resource allocations, these are comparatively minor points. Holder presumably is responding to the more significant criticism from popular and political sectors at home and abroad that American military tribunals are inadequate and lacking in integrity. The basic argument is that military tribunals, with their procedural restrictions, present an environment where the cards are stacked against detainees, who are tried and convicted with secret evidence and testimony from witnesses the detainees cannot confront.
All branches of government are concerned about their legitimacy, and this especially is true of the judicial branch. Courts usually are the least democratic, most inaccessible institutions in a democracy, so legitimacy is critical for them. Public perception is the keystone of legitimacy. Generally speaking, courts have no means by which to enforce their judgments. If the public believes a court is illegitimate, that court cannot function.
John Winger has a mixed history with the military justice system.
If Holder’s aim is to respond to the perceived deficiencies of the military justice system, does deliberately trying Mohammed in civilian, rather than military, court accomplish that goal, or does it admit a view that, when you really need fairness and integrity, military tribunals are not the place to go? If the Attorney General is unable to assuage the critics of military tribunals without changing the nature of those tribunals, are they ever appropriate? In not supporting the system that actually is under meaningful attack, has Holder conceded the critics’ point?
Supporters of military tribunals usually argue that prosecution before those bodies is appropriate when it is important that information required to conduct the proceeding not become public. They also argue that civilian trials of particularly dangerous individuals present a danger to the public not present in military trials. Opponents argue that in camera review (confidential review of evidence by the judge alone, in chambers) can adequately avoid disclosure of secret or confidential information. Extensive use of in camera review, however, may itself undermine the legitimacy of the proceeding. Increased security can reduce the risk of dangerous occurrences at an increased cost.
Holder’s claim that trying Mohammed in civilian court will rehabilitate the judicial system may be dubious, but perhaps there are other reasons for making this selection. If a civilian prosecution in this particular case does restore (both domestic and foreign) public confidence in America’s treatment of detainees, this could lead to some abstract improvement in the country’s international relations. If it quiets calls for better detainee treatment, it could prevent a push to try Mohammed before an international tribunal (the thought being that an American civilian trial, while not as agreeable to proponents of a military trial, would be preferable to process before an international body).
Part of Holder’s defense was that the trial will be quick and, given the overwhelming evidence, the end (a guilty verdict) is strongly implied. This responds to some of his critics’ concerns while undermining his position. If the point of prosecuting in civilian court is to demonstrate that the United States gave Mohammed the most fair trial it could offer, the fact that the outcome is a foregone conclusion that will follow from a quick and easy process suggest otherwise, and these statements from the Attorney General sound like something more than a prosecutor’s confidence in his case.
Republicans on the Senate Judiciary Committee, who did not necessarily share Holder’s background concerns, had other questions for the Attorney General:
How can we be assured that these enemies will be found guilty? Given that criminal courts are now the presumed venue for those captured on the battlefield, will soldiers need to read them their rights at the time of capture? Since you wish to make exceptions on a case-by-case basis to the presumed civil venue, don’t all those captured need to be read their rights and have the opportunity to remain silent? Won’t this venue expose intelligence to our enemies? Can our classified information really be secured? Can we in fact predict how the judge will rule? If these people are brought into the country will they get additional rights under immigration law? What if they claim asylum?
One observer reported that Holder “seemed bewildered in the face of these inquiries.”
As usual, there are arguments in favor of and opposed to the Attorney General’s decision to try Mohammed in civilian court. Their views on this question aside, those interested in consistency nevertheless may find Holder’s rationale, if not his position, unsatisfying.
The comment section below is available to explain your vote in the poll, present other arguments for and against the Attorney General’s decision, and offer alternative courses of action.