The Guantánamo Lawyers is a collection of stories from more than one hundred lawyers who have been involved in some way in representing the detainees held by the United States at Guantánamo Bay Naval base and elsewhere since the terrorist attacks of September 11, 2001.

The lawyers’ accounts are arranged to form an approximate chronological narrative of the Guantánamo litigation, although the chronology is interrupted to a degree in some of the chapters that deal with matters such as torture, rendition, and the cases of detainees held outside Guantánamo. Short introductory explanations by the editors appear throughout, and provide some context and continuity to the lawyers’ stories.

The book begins with the [...]]]> The Guantánamo Lawyers by Mark P. Denbeaux & Jonathan Hafetz (eds), New York: NYU Press, 2009.

The Guantánamo Lawyers is a collection of stories from more than one hundred lawyers who have been involved in some way in representing the detainees held by the United States at Guantánamo Bay Naval base and elsewhere since the terrorist attacks of September 11, 2001.

The lawyers’ accounts are arranged to form an approximate chronological narrative of the Guantánamo litigation, although the chronology is interrupted to a degree in some of the chapters that deal with matters such as torture, rendition, and the cases of detainees held outside Guantánamo. Short introductory explanations by the editors appear throughout, and provide some context and continuity to the lawyers’ stories.

The book begins with the establishment of Guantánamo as a detention facility after 9/11, and the decision of certain lawyers to get involved from an early stage in arguing for the habeas corpus rights of Guantánamo detainees, then termed “the worst of the worst”. In 2002, lawyers willing to represent terrorist suspects were few and far between. Among the initial few were Thomas Wilner of Shearman & Sterling and Michael Ratner of the Center for Constitutional rights; Joe Margulies, Clive Stafford Smith and Eric Freedman, all lawyers with expertise in death penalty litigation, also joined the cause from the outset.

These pioneers were later joined by many others, particularly after the Supreme Court’s 2004 decisions concerning the war on terrorism. The general picture that emerges about the motivations of the lawyers is that they did it out of a strong belief in the rule of law and due process, as well as a desire to restore the United States’ adherence to its own ideals. Many of the stories emphasize that the decision to act for the detainees was a form of patriotism as well — a salient point in light of the recent (and widely discredited) attack on the integrity of current Department of Justice lawyers who had previously worked on Guantánamo litigation.

The book unashamedly tells the story of Guantánamo from the perspective of the lawyers and their detained clients — all the lawyers, for example, are predictably critical of Bush Administration measures such as the combatant status review tribunals and the military commissions system. This perspective, together with the personal, first-hand nature of many of the stories, overlaps somewhat with books such as Clive Stafford Smith’s Eight O’clock Ferry to the Windward Side, Joe Margulies’ Guantánamo, and Barbara O’Shlansky’s Democracy Detained. However, The Guantánamo Lawyers tells the stories of a much wider group of people.

The middle portions of the book describe the experience of the lawyers in the extraordinary circumstances in which they found themselves, and in particular the various legal, bureaucratic and practical barriers that they faced in representing their clients. In addition to revealing the unusual working conditions the lawyers faced at Guantánamo, many of the stories highlight the efforts to which they had to go to secure their clients’ trust. This was often achieved with reminders of home or personal information obtained from a family member, or with food, whether traditional (nuts, raisins, baklava), or less traditional (McDonald’s coffees, and steak and egg breakfast sandwiches).

The Guantánamo Lawyers makes clear that acting for the detainees involved much more than simply representing clients in the traditional lawyerly sense. Some lawyers also advocated for their clients in the public arena by writing op-eds, blog posts and the like. Others sought recourse from the Inter-American Commission on Human Rights, or lobbied foreign governments to either press for the return of detainees who were their nationals or to accept other detainees who were not.

One of the book’s most intriguing portions relates the lawyers’ lobbying efforts in Congress as they sought to thwart efforts to stop their clients’ cases from being heard. They first attempted to defeat or at least minimize the impact of a provision in what became the Detainee Treatment Act of 2005 that sought to strip the Guantánamo detainees of the right to seek habeas corpus. Subsequently, the lawyers fought to defeat the further jurisdiction-stripping provision in what became the Military Commissions Act of 2006. They failed by a narrow margin, despite their best efforts and the assistance of the two senators from Illinois at the time, Senators Durbin and Obama. The involvement of then-Senator Obama is of course particularly interesting given his subsequent election to the Presidency.

A lengthy chapter of the book focuses on the torture and mistreatment of detainees, and conveys the lawyers’ harrowing accounts of matters such as their clients’ interrogations, their general treatment, and the hunger strikes that some detainees engaged in. Some of this material has been amply covered elsewhere (for example, in Clive Stafford Smith’s Eight O’clock Ferry to the Windward Side and the FBI Inspector General’s report from May 2008), but The Guantánamo Lawyers forcefully brings home other aspects of the detainees’ plight, especially the effects of prolonged isolation and indefinite detention with no prospect of a meaningful hearing.

As the book’s stories highlight, even for those released, life after Guantánamo has often been a hard road. It has sometimes meant a form of exile, as in the case of a number of Uighur detainees cleared for release by the United States. Some ended up in Albania, a country with which they have no obvious connection. For those detainees lucky enough to be released to their home country, there is still the great personal cost in terms of the disruption caused to their lives and their families’ lives.

The book’s somber tone and subject matter is leavened with a smattering of comic moments. These include: Clive Stafford Smith’s indignant response to allegations from the military that he had passed contraband (to wit, Under Armor briefs) to one of his clients; and how Ali Saleh Kahlah al-Marri, the third “enemy combatant” held inside the United States, was eventually permitted to watch Comedy Central’s The Daily Show and The Colbert Report on television because they technically did not count as news shows.

The stories contained in The Guantánamo Lawyers provide an interesting contrast with much of the legal writing on Guantánamo, which has typically concentrated on the actions of the Bush Administration (and now the Obama Administration), Congress, and especially the Supreme Court. For example, each time the Supreme Court ruled in favor of the detainees’ interests, as it did several times beginning in 2004, much was made of the legal significance of the Court’s actions. But, as the stories in The Guantánamo Lawyers makes plain, victory in the Supreme Court often meant very little on the ground to the detainees.

The collection ends on circumspect note. As made clear in the final vignette, one might question whether the strategy of appealing to American strategic interests in making the argument to close Guantánamo, as opposed to constructing a narrative based on the plight of the detainees, was ultimately the best move in light of the continuing debate over the appropriate legal framework for governing the detention of terrorist suspects. Perhaps the appeal to enlightened national interest was the best strategic means of accelerating the end of Guantánamo; but it necessarily de-emphasized in the public discourse the great cost imposed on the detainees. The many stories told in The Guantánamo Lawyers, which make Guantánamo’s human cost much more tangible, go some way towards redressing this.

_____________________________________________________________________

John Ip teaches law at the University of Auckland Faculty of Law.

Five high school students (from my old high school) have caused a minor scandal after they were found to have posed with the swastika and other various Nazi regalia during a school trip to the Auckland War Memorial Museum. According to media reports, this included ‘kissing a swastika, making a Nazi salute and kneeling in homage before a flag.’ (This news comes a month after it was reported that first year university students decided that to have an Oktoberfest party with some students dressed as Nazis and others as concentration camp prisoners.) The boys involved in the current incident have now been back to the Museum and apologised in person to staff and war veterans.

The [...]]]> Okay, so I just picked that number out of the sky.

Five high school students (from my old high school) have caused a minor scandal after they were found to have posed with the swastika and other various Nazi regalia during a school trip to the Auckland War Memorial Museum. According to media reports, this included ‘kissing a swastika, making a Nazi salute and kneeling in homage before a flag.’ (This news comes a month after it was reported that first year university students decided that to have an Oktoberfest party with some students dressed as Nazis and others as concentration camp prisoners.) The boys involved in the current incident have now been back to the Museum and apologised in person to staff and war veterans.

The incident actually occurred earlier in the year, but came to the attention of the school recently after the pictures were posted and seen by a former student on Facebook (not me in case you are wondering – I am useless on Facebook). Whereas in the past one might have called up one’s mates and told them about pictures of such tasteless and offensive acts, the age of digital cameras, wifi and social networking means that the pictures themselves can be there for the world to see.

Now, the New Zealand Herald wonders breathlessly, ‘What history should schools be teaching our students?’ (I like history, so super-deluxe with extra cheese.) But seriously, I hope this is just a case of historical ignorance about World War II, Nazis and the Holocaust. In any case, I imagine the five boys concerned will have learnt about, if nothing else, the perils of Facebook.

One of the apparent favourites to fill the recently advertised vacancy is Jonathan Sumption, QC. (Aside: wouldn’t it be neat to write your own Supreme Court vacancy? “Wanted: Supreme Court Justice. Must be steeped in legal learning, have gravitas, and be able to get along with others steeped in legal learning and possessing gravitas. Serious brainpower desirable; advocacy experience a must, judicial experience preferred.”) It [...]]]> Two further matters regarding the UK Supreme Court. The first concerns the vacancy for the 12th spot on the Supreme Court. According to the Ministry of Justice, vacancies are filled by a selection commission, comprising of  ‘the President and Deputy President of the Supreme Court . . .  and members of the appointment bodies for England, Wales, Scotland and Northern Ireland.’

One of the apparent favourites to fill the recently advertised vacancy is Jonathan Sumption, QC. (Aside: wouldn’t it be neat to write your own Supreme Court vacancy? “Wanted: Supreme Court Justice. Must be steeped in legal learning, have gravitas, and be able to get along with others steeped in legal learning and possessing gravitas. Serious brainpower desirable; advocacy experience a must, judicial experience preferred.”) It is Jonathan Sumption QC’s judicial (in)experience that is causing controversy. There is no doubt he is a top advocate, and he apparently doubles as a medieval historian. Intellectual chops is not the issue. But he has never served as a judge, and his potential elevation to the Supreme Court would have him leapfrog judges of the Court of Appeal (and for that matter, the judges below that court as well). Some Court of Appeal judges have reportedly expressed some displeasure at this.

There seem to be two different arguments here. The first is that one should in a sense pay one’s dues out of respect for those more senior. That doesn’t strike me as a particularly good argument, and I don’t imagine readers enculturated in the US system of judicial appointments would feel differently. The second claim, that it would be useful for even the most gifted legal mind to gain some judicial experience before heading to the Supreme Court, strikes me as the better argument.

And now for the second item concerning the UK Supreme Court: The UKSC Blog has an interesting item on the size and composition of the Court. It appears that the Court may sit in various odd numbered configurations. This seems a little odd to me, although there is certainly historical precedent for this with the House of Lords. I think there is a lot of sense in having the same set of judges on a top court. This avoids questions about A-teams and B-teams, and whether one would have won the case if Justice X had been sitting in place of Justice Y.

I miss this show. At the same time, I understand why David Simon et al drew the line at five seasons. It’s hard to maintain such a high standard over a prolonged period of time  – indeed I thought season 5 was probably the weakest season. That said, it was in my view no worse than the fifth best season of a television series ever shown. It’s hard for me to take other police shows seriously now.

One of the things that I do now is to spread the word about the masterpiece that is The Wire. I was first given season 1 on DVD in 2005, and was pretty much instantly hooked. (In its infinite wisdom, Television New Zealand has screened the show, usually [...]]]>

I miss this show. At the same time, I understand why David Simon et al drew the line at five seasons. It’s hard to maintain such a high standard over a prolonged period of time  – indeed I thought season 5 was probably the weakest season. That said, it was in my view no worse than the fifth best season of a television series ever shown. It’s hard for me to take other police shows seriously now.

One of the things that I do now is to spread the word about the masterpiece that is The Wire. I was first given season 1 on DVD in 2005, and was pretty much instantly hooked. (In its infinite wisdom, Television New Zealand has screened the show, usually around midnight. In any case, having commercial breaks in between would no doubt have driven me batty.) During the halycon days of seasons 3 and 4, a couple of North American colleagues and I would sometimes avidly discuss the show at our daily Faculty morning teas, leaving some of our other colleagues wondering why we were discussing West Baltimore versus East Baltimore, and just who Lester Freamon, Bunk, McNulty, Stringer Bell and Omar Little were. (Incidentally, I am often similarly lost at morning tea when the topic of conversation wanders into such private law gems as waiver of tort and principles of agency.)

Since then, several more of my colleagues have been persuaded to start watching (thank me later, HBO). My advice is usually to put the subtitles on – the New Zealand vernacular and accent have little in common with that of Baltimore.

Also, having met various academic colleagues at conferences and other events overseas, I am surprised how often The Wire arises in conversation. What accounts for this apparent popularity amongst the legal academy? Perhaps part of it can be put down to some of the classic depictions of law through the five seasons. The examples that come to mind are Omar’s courtroom confrontation with Maurice Levy, Kima and co satisfying the legal requirements for obtaining a wiretap, and the various depictions of police interrogation (the xerox-machine-as-polygraph incident, presumably a recreation of an incident David Simon described in Homicide, is a personal favourite). Quite apart from this, some of the themes – most obviously the futility of the war on drugs – have obvious connections to the law.

Actually, it seems to me that The Wire would be ripe for some law and literature-style scholarship. Is anyone aware of any?

The Court consists of twelve Justices (although one is yet to be appointed), and is headed by the first President of The Supreme Court, Lord Phillips of Worth Matravers. (Aside: I have always been a little hazy as to why certain Law Lords get the cool place-name-appendage and others don’t. Apparently, as now UK Supreme Court Justice, Baroness Hale of Richmond, explains (around the 15 minute mark), it is tied to the need for every member of the House of Lords to have a [...]]]> On 1 October 2009, the Supreme Court of the UK opened for the first time. Located in Parliament Square, the new court replaces the (Appellate Committee of the) House of Lords, which had previously functioned as the highest court in the UK.

The Court consists of twelve Justices (although one is yet to be appointed), and is headed by the first President of The Supreme Court, Lord Phillips of Worth Matravers. (Aside: I have always been a little hazy as to why certain Law Lords get the cool place-name-appendage and others don’t. Apparently, as now UK Supreme Court Justice, Baroness Hale of Richmond, explains (around the 15 minute mark), it is tied to the need for every member of the House of Lords to have a unique name.)

The appellate role of the House of Lords had evolved over hundreds of years;  full-time professional judges had operated within it for more than 130 years. The replacement of the Appellate Committee of the House of Lords with the Supreme Court was announced in 2003, and this change was implemented by the Constitutional Reform Act 2005.

The opening of the new Supreme Court represents more than just a change in name and premises: it is a significant constitutional milestone. According to Lord Phillips of Worth Matravers, it is about giving ‘formal effect to an important constitutional principle — the separation of powers’. Indeed it is possible (as suggested here), that the new UK Supreme Court may view its institutional position in a somewhat different light, and may be more willing to flex its judicial muscle against the government. Interesting times await.

Image: wikimedia commons, Martin23230, Creative Commons Attribution ShareAlike 3.0 License

The issue the UK has faced  in recent years is what to do with terrorist suspects who cannot be deported (because of the Chahal decision of the European Court of Human Rights), and who the government is unwilling to try in ordinary court for reasons such as sufficiency of evidence and ensuring [...]]]> A Times report from earlier this month states that ‘Britain’s most dangerous terrorist suspects are likely to be released from detention to avoid the disclosure of secret intelligence evidence’. Relatedly, the BBC reports that the Home Secretary, Alan Johnson, has requested that the government’s independent reviewer of terrorism legislation, Lord Carlile, review the regime of detention -  control orders under the Prevention of Terrorism Act 2005 (PTA) – and consider whether it remains viable.

The issue the UK has faced  in recent years is what to do with terrorist suspects who cannot be deported (because of the Chahal decision of the European Court of Human Rights), and who the government is unwilling to try in ordinary court for reasons such as sufficiency of evidence and ensuring the secrecy of intelligence gathering. One approach was to create a scheme of non-criminal detention for terrorist suspects. Part IV of the Anti-terrorism Crime and Security Act 2001 permitted the Home Secretary to certain certain non-citizens to be suspected international terrorists and to detain them indefinitely. In December of 2004, the House of Lords declared this to be incompatible with the European Convention on Human Rights (ECHR) in the much-lauded Belmarsh case.

This decision led the government to repeal Part IV of the 2001 Act, and enact in its place the PTA. The PTA permits the Home Secretary to impose control orders upon terrorist suspects – citizen and non-citizen alike. Control orders are similar to a set of strict bail conditions, and typically impose restrictions on individuals such as curfew, electronic tagging, and restrictions on communication and association. (For a much fuller look the control order regime, see this article by Clive Walker).

The government’s use of control orders has been challenged in several different ways. The relevant strand of litigation related to the non-disclosure of information: those subject to control orders (and their lawyers) are not entitled under the PTA to see the full case against them. Disclosure is made to appointed lawyers known as special advocates, but the ability of the special advocate to communicate with the person concerned after seeing the sensitive material is severely limited. Certain persons subject to control orders challenged this aspect of the control order regime, claiming that it was incompatible with article 6 of the ECHR, protecting the right to a fair hearing.

In the somewhat confusing decision of MB, a majority of the House of Lords ruled that a special advocate could not invariably be counted on to mitigate the unfairness of the non-disclosure and ensure compliance with article 6. However, rather than declaring the control order regime incompatible with article 6, the majority read the provisions that allowed non-disclosure as being subject to a proviso of not creating breaches of article 6. However, the MB decision was not clear as to whether providing controlees the gist (or core) of the case against them was  necessary to ensure compliance with article 6. After further litigation, this was clarified as indeed being necessary in the June 2009 decision of AF .

The control order imposed on AF, the first named appellant in that case, has  been revoked because the Home Secretary has decided that he is unwilling to disclose the necessary information. Reportedly, many of the other 15 or so control orders currently in force will be allowed to lapse, assuming that lawyers for those concerned don’t force the action first. Update: since I have been writing this post, the Home Secretary has revoked one further control order (imposed on a person known as AE) for the same reason.

One can only speculate as to what the revoking of the control orders against AF and AE means. If one rules out bad faith, then presumably the Home Secretary considered keeping AF and AE – two of ‘Britain’s most dangerous terrorist suspects’ - subject to control orders as being less important than protecting the secrecy of the sources and means of intelligence that might have been revealed by disclosure.

Assuming that the article 6 line of decisions presages the end of the control order regime, then law-makers will once again be faced with the issue of whether to devise a replacement system for dealing with terrorist suspects, or whether to place renewed emphasis on criminal prosecution (and perhaps in the case of foreign terrorist suspects, deportation within the constraints imposed by Chahal).

Having watched most of the University of Georgia’s victory over Arkansas over the weekend by a videogame-like score of 52-41, I coincidentally spotted a story entitled ‘Uni logo beats gang patch ban‘ in The New Zealand Herald. The story begins as follows:

A charge brought under Wanganui’s gang patch ban bylaw has been dropped after the man argued the bulldog on his beanie was a Georgia University logo and not a Mongrel Mob insignia.

In order to explain this rather odd state of affairs, some background is necessary. The New Zealand town of Wanganui has, depending on whom you ask, a gang problem of some level of severity. In 2007, 67% of locals voted in a referendum in favour of banning the [...]]]>

Having watched most of the University of Georgia’s victory over Arkansas over the weekend by a videogame-like score of 52-41, I coincidentally spotted a story entitled ‘Uni logo beats gang patch ban‘ in The New Zealand Herald. The story begins as follows:

A charge brought under Wanganui’s gang patch ban bylaw has been dropped after the man argued the bulldog on his beanie was a Georgia University logo and not a Mongrel Mob insignia.

In order to explain this rather odd state of affairs, some background is necessary. The New Zealand town of Wanganui has, depending on whom you ask, a gang problem of some level of severity. In 2007, 67% of locals voted in a referendum in favour of banning the display of gang insignia. Led by the crusading mayor of the town, Michael Laws, the Wanganui District Council eventually obtained the legal authority to do just this in the form of the Wanganui District Council (Prohibition of Gang Insignia) Act 2009.

Under this Act, the Council is given the power to make bylaws that identify certain persons or groups as a gang for the purposes of the Act, and designate any public place to be specified place for the purposes of the Act. A provision in the Act itself states that ‘No person may display gang insignia at any time in a specified place in the district.’ Anyone who violates this prohibition without reasonable excuse commits an offence and may be fined up to $2000. Police officers are given the power to arrest violators without warrant and to seize the offending item; the insignia (and any clothing it is attached to) is forfeited upon conviction or guilty plea.

The Wanganui District Council passed the Wanganui District Council (Prohibition of Gang Insignia) Bylaw 2009 on 31 August 2009 in a self-described ‘triumph for decency and democracy.’ The bylaw, which came into force on 1 September 2009, identifies three groups as gangs (in addition to the seven already specified in the Act), and identifies a series of ‘specified places’ where the display of gang insignia is prohibited by the Act.

Which brings me back to the University of Georgia Bulldogs. It turns out that the team mascot and team colours (red and black), are similar to those of the Mongrel Mob, one of the specified gangs under the Act. According to a local paper, the man in question, who is a member of the gang mentioned above, says that the beanie was a gift from his niece. Meanwhile, a police central district commander Superintendent expressed his disappointment that the Wanganui police had decided to withdraw the charge.

Anyone around Wanganui not wishing to be mistaken for a gang member violating the prohibition on display of gang insignia would presumably do well to keep their Georgia gear out of sight. I suppose the same advice might also apply for the Georgetown Hoyas, Washington’s Harry the Husky, and any other canine-related logos.

Image: wikimedia commons; by johntrainor; Creative Commons Attribution 2.0 License.

According to the [...]]]> With two major sets of documents related to torture having been disclosed in 2009 (see here and here), I thought it would be useful to try and bring together how some of the more recently disclosed memos fit into the story of the CIA’s Program for detaining and interrogating high value detainees. In doing so, I am of course building on the work of others. (See for example, this New York Times story from May,  Foreign Policy’s Torture Timeline, which has a broader scope than what I intend to post about, and Harold Bruff’s very interesting Bad Advice, which I recently finished reading. See also this New York Review of Books article by David Cole, which appeared while I was writing this post.)

According to the CIA Inspector General’s report (discussed in a previous post), a key event was the March 2002 capture of Abu Zubaydah, regarded as a senior al Qaeda operative. The CIA developed a set of coercive interrogation techniques (EITs – or enhanced interrogation techniques), and used them on Zubaydah with the knowledge and at least implicit permission of President Bush’s top advisors. This occurred prior to a formal opinion as to legality from the Department of Justice – in the interim, oral guidance was relied on. The CIA at one point reportedly suspended the use of the coercive interogation techniques pending formal authorization.

In August 2002, the Office of Legal Counsel issued formal legal guidance in the form of the August 2002 memoranda concerning the interpretation and application of the Federal Torture Statute (18 USC 2340 & 2340A). The original Bybee/Yoo memo, which became public in 2004, set out the notoriously narrow definition of torture, and has been extensively commented on elsewhere. A recently disclosed companion memo entitled ‘Interrogation of al Qaeda Operative‘, dated the same day, concludes that the  interrogation techniques the CIA proposed to use on Zubaydah would not violate the Torture Statute. Indeed, but for the chilling subject matter, it is a prosaic manifestation of law school-style legal method: interpret the law, apply to the facts.

Soon after its public disclosure, the original August 2002 memo on the Torture Statute was withdrawn by Jack Goldsmith. As Goldsmith himself recounts in The Terror Presidency, his action undermined the assurances the CIA had been given that their interrogation practices did not violate the Torture Statute. The memo was not replaced until a 30 December 2004 memo by Daniel Levin was issued. The Levin memo was more circumspect, and backed off some of the more extravagant claims its predecessor had made. It reportedly necessitated operational changes.

It also necessitated new legal opinions. The existence of these opinions, written in 2005, were revealed in sources such as The New York Times and Jane Mayer’s The Dark Side. With the subsequent disclosure of more documents, including several further memoranda discussing torture and interrogation, it is possible to fill in the details. A New York Times story from June this year included leaked emails dated late April 2005 from then-Deputy AG James Comey. The emails reveal the political pressure that the Department of Justice was under, and the reservations that Comey had. In terms of a chronology, the first email is instructive in that it confirms that the Levin memo meant that OLC had to work on new memos, and that two new memos – one addressing individual interrogation techniques and the other addressing the combined use of techniques – were in the pipeline.

This corresponds neatly with two legal opinions by Steven Bradbury issued on May 10 2005. The first, Re: Application of 18 USC §§2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee, concludes that the separate use of specified enhanced interrogation techniques – including cramped confinment, stress positions, sleep deprivation and waterboarding – did not violate the Torture Statute. The second, Re: Application of 18 USC §§2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees, comes to the same conclusion as the first with regard to the combined use of cetain techniques.

These two memos are remarkable in their own right. The first, because it is stated to be consistent with the 2004 Levin opinion, comes to its conclusion without resort to the Bybee/Yoo memo’s reliance on criminal law defences, or that memo’s extravagant constitutional claims. Thus its conclusion is based solely on the interpretation of the Torture Statute. Similarly, the second memo’s conclusion – that combinations of techniques (for example, waterboarding plus ‘dietary manipulation’ and sleep deprivation) are not prohibited by the Torture Statute – is also based  on the words used in the provision.

The next memo (from May 30 2005), Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees, concludes that the CIA’s use of enhanced interrogation techniques is consistent with article 16 of CAT, which obliges states to prevent ‘acts of cruel, inhuman or degrading treatment or punishment’. Bradbury comes to this incredible conclusion by relying on two jurisdictional arguments and one substantive argument. Interesting discussions of the substance of the jurisdictional arguments can be found here and here. As for the substantive argument, Bradbury concludes that the CIA’s use of enhanced interrogation techniques – complete with limitations and controls – do not violate article 16 because it does not ‘shock the conscience’, this being the relevant test due to the US reservation to article 16 of CAT. In sum, this memo’s remarkable conclusion – alas, I fear that I am wearing out the adjective ‘remarkable’ – is that the CIA’s enhanced interrogation techniques do not amount to cruel, inhuman or degrading treatment.

Unlike the other memos discussed, which fixate on the Torture Statute (presumably because it criminalized any actions by CIA agents outside the United States that constituted torture), this memo concerns article 16, breach of which is not criminal (for more on the distinction in international law between ‘criminal’ acts and ‘illegal’ acts, see here). Perhaps there was a perceived need to address article 16, given that the CIA Inspector General’s Report had identified this (at para 253) as having been overlooked by the OLC in 2002. It may also have been, as David Cole suggests, a pre-emptive strike on the impending prohibition on the cruel, inhuman, or degrading treatment of anyone in US custody that was eventually enacted as part of the Detainee Treatment Act (DTA) in December 2005.

Thus far, I have been discussing memos that were disclosed earlier this year. I now turn to three documents that were released at the end of August (see here). All three were authored by Steven Bradbury, and addressed to John Rizzo, General Counsel for the CIA. The first is a letter, dated 31 August 2006, that memorialises previous oral advice that the conditions of confinement at CIA black sites did not violate Common Article 3 of the Geneva Conventions. The oral advice was tendered on 30 June 2006, one day after the Supreme Court held that Common Article 3 was applicable to the conflict with al Qaeda in Hamdan v Rumsfeld.

The second document is a memorandum dated 31 August 2006, Re: Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Detention Facilities. This memo concludes that the conditions of confinement at CIA black sites did not breach the requirements of the Detainee Treatment Act 2005. As with the 30 May 2005 memo on article 16 of the Convention Against Torture, the discussion focuses on the ‘shocks the conscience’ test given that ‘cruel, inhuman or degrading treatment’ in the DTA was defined in terms of the Fifth, Eighth and Fourteenth Amendments.

Why the discussion about conditions of confinement rather than ‘enhanced interrogation techniques’? The May 2009 New York Times story referred to earlier states that the the CIA had stopped waterboarding after March 2003, and the CIA’s use of ‘enhanced interrogation techniques’ had ceased in 2005. So, by the time of these two memos, the CIA was not using its ‘enhanced interrogation techniques’, but may still have been holding detainees at various black sites at the end of August 2006. At the beginning of September, after a series of meetings that took place over the summer of 2006, President Bush announced that 14 ‘high value detainees’ had been transferred to Guantanamo, and that this had emptied out the CIA’s prisons. Whether the black sites still held detainees on 31 August 2006 is unclear (to my knowledge) given the uncertainty as to exactly when the transfer of the 14 took place and the lack of other sources on whether other detainees may still have been held at black sites.

According to the same New York Times story, Vice President Cheney and certain CIA officials took steps to reinstitute the CIA’s torture program. And so Steven Bradbury went back to work in late 2006 to work on a memo. Once again, he delivered:

Early drafts of the memorandum, circulated through the White House, the C.I.A. and the State Department, shocked some officials. Just months after the Supreme Court had declared that the Geneva Convention applied to Al Qaeda, the new Bradbury memorandum gave its blessing to almost every technique, except waterboarding, that the C.I.A. had used since 2002.

This third document, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees (20 July 2007) is, indeed, pretty shocking (for an analysis of this memo, see Deborah Pearlstein’s post here). This memo should be read in conjunction with Executive Order 13440, which reauthorised the CIA program the very same day, subject to certain limitations – several of which Bradbury had concluded did not prohibit the CIA from employing six ‘enhanced interrogation techniques’. (Subsequent to July 2007, three short documents (dated 23 August 2007, 6 November 2007, 7 November 2007) from Bradbury to an unnamed Associate General Counsel of the CIA affirm the legality of extended periods of sleep deprivation in the course of an interrogation of unknown  detainee(s), suggesting that at least one detainee was being coercively interrogated by the CIA after July 2007.)

In some ways the 79 page Bradbury memo of July 2007 is more remarkable than the Yoo/Bybee memo of 2002. As noted earlier, Bradbury didn’t have the luxury of relying on John Yoo’s iconoclastic theories of executive power, nor his loose analogies to the law of self-defence. Moreover, Bradbury had new laws (notably the DTA) and adverse court decisions (Hamdan) to contend with. And yet, he managed to come to the conclusion that the CIA could basically do what it had been doing in the past, minus waterboarding. This memo truly deserves to be up -or is it down?- there with the original August 2002 Yoo/Bybee memo in the Pantheon of bad legal advice.

‘I believe the pendulum of justice has swung too far in favour of criminals … This Government is focusing on putting the victim in the centre of judicial proceedings. I have zero tolerance towards pandering to criminals.’

There’s a gem in each soundbite-cum-sentence. If we already know that certain people are guilty criminals, then surely the criminal trial process is an expensive and unnecessary luxury. But perhaps we should keep it so we can ‘[put] the victim at the centre of judicial proceedings’, whatever that might mean. As for the new tough-on-pandering-to-criminals [...]]]> Popular punitiveness is by now a well-documented phenomenon in many countries. New Zealand is no exception. The following statement from Judith Collins, the current Police and Corrections Minister, sums up the state of the play:

‘I believe the pendulum of justice has swung too far in favour of criminals … This Government is focusing on putting the victim in the centre of judicial proceedings. I have zero tolerance towards pandering to criminals.’

There’s a gem in each soundbite-cum-sentence. If we already know that certain people are guilty criminals, then surely the criminal trial process is an expensive and unnecessary luxury. But perhaps we should keep it so we can ‘[put] the victim at the centre of judicial proceedings’, whatever that might mean. As for the new tough-on-pandering-to-criminals approach, the criminal pandering lobby has yet to comment.

Not surprisingly, one of the main advocates of the smacking referendum is unimpressed with the outcome. The people have [...]]]> In a previous post, I documented the Kiwi kerfuffle over the smacking of children, the fallout from a 2007 law change. I noted that there had recently been a referendum put to the electorate on the issue, with a clear majority of those who responded indicating a level of dissatisfaction with the law. However, the government has seemingly decided to rule out further changes to the law. It has instead announced a review to ensure the law is working properly, with the focus being on ensuring the police exercise their discretion properly – that is, go after those who abuse children, while overlooking smacking by good parents.

Not surprisingly, one of the main advocates of the smacking referendum is unimpressed with the outcome. The people have spoken; the government appears to be ignoring (or largely ignoring) what they have said. The next step? Another referendum asking the folowing qustion: ‘Should Citizens Initiated Referendum seeking to repeal or amend a law be binding?’

In other words, a referendum about referenda; more specifically (assuming it goes ahead), a non-binding referendum on whether referenda should be binding. Brilliant. I would suggest, in order to keep with the spirit of the loaded wording of the original smacking referendum, that the wording be: ‘Should a Citizens Initiated Referendum seeking to change the law as part of good democratic governance be binding?’

There are several major differences between submitting an article to a US law review, and (for want of a better term) a UK/Commonwealth law journal. The first, the relevant word limit, really kicks in at the time of conceiving the article. The rule of thumb for length outside the US is between 8,000-12,000 words all up (I swear just the introductions of some American [...]]]> I’d like to write about my experiences of submitting to American law reviews, and to compare that to my experiences with submitting to law journals elsewhere. In posting about this, I hope that I am not flogging a dead horse. Also, as a relatively junior academic, I don’t claim to have a lot of experience with submitting law journals in any jurisdiction.

There are several major differences between submitting an article to a US law review, and (for want of a better term) a UK/Commonwealth law journal. The first, the relevant word limit, really kicks in at the time of conceiving the article. The rule of thumb for length outside the US is between 8,000-12,000 words all up (I swear just the introductions of some American law review articles I have read over the years would eat up about half of this). Obviously, the higher word limit for US outlets gives the author considerably greater lattitude. Whether this makes for better scholarship, I’ll leave for persons wiser than I to decide.

Second, UK/Commonwealth law journals (at least the ones that I am aware of) work on the basis of single, exclusive submission and blind peer review. One typically attaches the article in a short email to the editor(s) and then waits. There appear to be essentially three possible responses: “no”, “perhaps, if you revise”, and “yes (perhaps with some minor changes)”. In any case, there will usually be substantive comments from reviewer(s) and editor(s) who will themselves be law professors. In my experience, and in the experience of colleagues, it’s quite common, after a journal that has rejected one’s article, to get comments that suggest one’s work has some pretty major flaws, but for the next journal to think that one’s article is the greatest thing since sliced bread.

This is of course to be contrasted with the US system – usually with multiple submissions to student-run law reviews – that I assume most readers of this blog are quite familiar with. It was rather strange the first time I submitted to multiple law journals – I felt like a kid with my hand in the cookie jar (or is that cookie jars?). That was until of course the barrage of form-rejection emails started rolling in. I quipped to some colleagues that I’d never had one article rejected so many times. (And incidentally, I would certainly agree with Lawrence Cunningham that rejection certainly beats non-response.)

Once one reaches the post-acceptance editing stage, my experience is that the UK/Commonwealth journals just tell you what changes they would like made, and one is then expected to go and do it. A submission to a US outlet on the other hand comes back marked up with all kinds of suggestions in track changes: all verbs in active voice, more footnotes,  and  more footnotes. Of all the annoying things about American law reviews described by Dan Solove, the one that stands out to my foreign eyes is the (over)-referencing required. Compare this to the UK/Commonwealth model, where the practice of excessive footnoting, particularly the use of footnotes to virtually write a series of separate mini-articles, is frowned upon, and in some cases actively discouraged.

I don’t want to be seen as bagging the American model and extolling the virtues of the UK/Commonwealth model. They’re just different. In my experience, one is likely to get more helpful substantive feedback with the latter, although at the same time it can be at times discouraging. One is likely to get a speedier acceptance with the former – I’ve heard stories of some UK/Commonwealth journals taking six months to decide. That’s a long time to wait in a system that allows only single submission.

Finally, I’ve often wondered about the fact of being a foreigner when submitting to a US law review. Does one operate at a disadvantage? If so, is that disadvantage distinct from simply non-recognition of name and institution?

I was a little surprised to see an op-ed article entitled “Torture justifiable in some cases” appear in the New Zealand Herald last week (alas, by default, New Zealand’s paper of record). The blunt, utilitarian thrust of the piece, by  Australian law professor Mirko Bagaric, is predictable from its title. Professor Bagaric claims that life-saving torture is morally justifiable, and that we should reconsider the legal prohibition on torture because it is likely that the CIA’s use of torture ‘did save thousands of lives’.

His empirical claim essentially echoes former Vice President Cheney, who has repeatedly claimed that the CIA’s EITs (enhanced interrogation techniques – read torture, or at the very least, illegal cruel, inhuman or degrading treatment) were necessary and effective, and saved lives. When [...]]]>

I was a little surprised to see an op-ed article entitled “Torture justifiable in some cases” appear in the New Zealand Herald last week (alas, by default, New Zealand’s paper of record). The blunt, utilitarian thrust of the piece, by  Australian law professor Mirko Bagaric, is predictable from its title. Professor Bagaric claims that life-saving torture is morally justifiable, and that we should reconsider the legal prohibition on torture because it is likely that the CIA’s use of torture ‘did save thousands of lives’.

His empirical claim essentially echoes former Vice President Cheney, who has repeatedly claimed that the CIA’s EITs (enhanced interrogation techniques – read torture, or at the very least, illegal cruel, inhuman or degrading treatment) were necessary and effective, and saved lives. When several notable Bush-era torture memos were disclosed in April this year, Cheney made these claims again, and added that there were documents that, if disclosed, would vindicate his position . Documents that appear to be those Cheney was referring to have now been disclosed, but they do not appear to substantiate Cheney’s claims. High value al Qaeda detainees held by the United States certainly did provide information. But even if we assume that some/most/all of that information was relevant and true, this does not demonstrate that the EITs were effective (or colloquially, that torture works). Does the CIA Inspector General’s Report, also recently disclosed, have anything to say about the matter?

At paragraph 211, the Inspector General (IG) observes that the CIA’s program has been successful from the standpoint of incapacitating certain terrorists, but that ‘[m]easuring the effectiveness of EITs, however, is a more subejctive process and not without some concern.’ In subsequent paragraphs, the IG’s report states that many of the intelligence reports generated between the 9/11 attacks and April 2003 came from ‘intelligence provided by the high value detainees’, and that ‘[d]etainees have provided information on Al-Qa’ida and other terrorist groups’. This included information leading to the identification of terrorist operatives, and information about terrorist plots – although there was no evidence that these plots were imminent.

At paragraphs 222-225, the IG’s report discusses the treatment of three particular detainees. It notes that Abu Zubaydah was waterboarded multiple times, but that ‘[i]t is not possible to say definitively that the waterboard is the reason for Abu Zubaydah’s increased production’. The report states at the end of paragraph 224 that Al-Nashiri was subject to various EITs, and subsequently ‘provided information about his most current operational planning and [redacted] as opposed to the historical information he provided before the use of EITs.’ The very beginning of paragraph 225 states that ‘[o]n the other hand, Khalid Shaykh Muhammad . . . provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete.’ The report then notes that Khalid Shaykh Muhammad was waterboarded 183 times in March 2003. The rest of the paragraph is redacted.

What is to be made of this? The report does not express a clear view of the efficacy of the EITs. It seems to suggest that the EITs were effective on Al-Nashiri, although presumably, as with Abu Zubaydah, it would be difficult to show definitely that the EITs were the cause of increased cooperation. Also, does the fact that the paragraph following begins with ‘On the other hand’ suggest that waterboarding did not work on Khalid Shaykh Muhammad? There is no way to be sure about this given that the back half of the paragraph is entirely redacted. (Indeed, the IG’s report is in parts very heavily redacted, so it is theoretically possible (if unlikely) that the redacted portions happen to be the parts that completely vindicate the Cheney position.)

Which brings me to the title of my post. It seems quite possible for people on either side of the torture debate to look into the report, and conclude that it reinforces whatever view that they already held about torture, and more specifically, the efficacy of torture. The reason why there is such a contest over the efficacy of torture, of course, is that it obviates the need to deal with the moral question, about which there may be disagreement. If torture doesn’t work (by this I mean elicit truthful information), then there is no practical reason to use it. And so begins the battle of the anecdotes – a seemingly inevitable consequence given the impossibility of a controlled study into the matter.

Professor Bagaric, for example,  asserts that there is a wealth of evidence that suggests that torture works. He cites two examples. The first is the claim of Israeli authorities that they foiled ninety terrorist attacks ‘by using coercive interrogation’. This example is presumably derived from a report submitted by Israel under article 19 of the Convention Against Torture. At paragraph 24, it is stated that ‘as a result of GSS investigations of terrorist organizations’ activists during the last two years, some 90 planned terrorist attacks have been foiled.’ Were the 90 planned attacks foiled substantially through the use of torture? Perhaps, but it is hard to know for sure.

The second example cited by Professor Bagaric is former CIA interrogator John Kiriakou’s account of the interrogation of Abu Zubaydah: ‘Kiriakou says the technique known as waterboarding broke Zubaydah in less than 35 seconds. The agent says he has no doubt that the information provided by Zubaydah “stopped terror attacks and saved lives”.’ There are a number of reasons to be dubious of these claims. As noted, the IG’s report does not conclude that Zubaydah began talking because of the torture. And if Zubaydah was broken after a mere 35 seconds – a la 24 – why was it necessary to waterboard him 83 times (as noted in paragraph 223 of the IG’s report)? Additionally, we have information about Abu Zubaydah’s interrogation from one of his interrogators, FBI agent Ali Soufan. Soufan confirms that much of the actionable intelligence that came from Zubaydah was  gained  without the use of torture or coercion.

In the end, it is difficult to maintain the oft-repeated position that torture is pointless because in all cases the victim will say anything to make the torture stop. This is a problem endemic to any universal claim. The claim that “all sheep are white” is falsified once someone discovers a black one. Similarly, it is hard to refute every  example put forward by advocates of interrogational torture.  This is particularly so given the secrecy typically surrounding such events (although, at the same time, we shouldn’t be too credulous of secretive and possibly self serving accounts about the efficacy of torture).

Moreover, the debate over efficacy is only a part of the picture. First, the issue isn’t really torture’s effectiveness in eliciting the truth, but rather its  effectiveness in eliciting the truth relative to other non-coercive techniques. Paragraph 250 of the IG’s report expresses uncertaintly on this point:  ‘The CTC Detention and Interrogation Program has resulted in the issuance of thousands of individual intelligence reports and analytic products supporting the counterterrorism efforts of U.S. policymakers and military commanders. The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured, however.’ Soufan on the other hand suggests that torture is relatively ineffective next to traditional non-coercive interrogation techniques.

Second, even if we accept that torture might sometimes be more effective in eliciting truth than non-coercive interrogation techniques, it does not  follow that the legal prohibition on torture should be reconsidered unless the relative inefficacy of torture was the only reason one had for opposing its use. And as I have discussed elsewhere, there are other good reasons for opposing proposals to legalise torture.

Image: Wikimedia commons

The amended (and current) version of s 59 states in subsection 1 that parents may use reasonable force for the purposes of (a) preventing or minimising harm to the child or another person; (b) preventing [...]]]> Prior to 2007, s 59 of the Crimes Act of 1961 provided a defence to parents who applied force to discipline their children, provided that only reasonable force for the purposes of correction was used. Over the years, parents who had in some cases been charged with serious forms of assault successfully relied on the section and escaped conviction. In 2005, Sue Bradford, a Green Party MP, introduced a bill that would have repealed s 59. The eventual amendment to the Crimes Act, however, was rather more complex and equivocal.

The amended (and current) version of s 59 states in subsection 1 that parents may use reasonable force for the purposes of (a) preventing or minimising harm to the child or another person; (b) preventing the child from engaging in conduct that amounts to a criminal offence; (c) preventing the child from engaging in offensive or disrputive behaviour; or (d) performing the normal daily tasks that are incidental to good care and parenting.

Ladies and Gentlemen, start your factual hypothetical generators … But wait, there’s more. Subection 2 states that nothing in the previous subsection or any common law rule justifies the use of force for the purposes of correction; subsection 3 states that subsection 2 prevails over subection 1. So what about situations where a parent smacks a child for partly preventive and partly corrective purposes? The law’s application in such cases is unclear. Finally, subsection 4 affirms that police have the police have the discretion not to prosecute in cases that are so inconsequential that there is no public interest in prosecuting (prosecutorial agencies have a discretion not to prosecute by default.)

My assessment of the New Zealand national character is that in general, Kiwis do not get very worked up about things – I base this empirically unsubstantiated claim on my comparative observations of people being delayed in New Zealand and American airports, and also the extent to which I can say outlandish things in my classes before I get any reaction out of my students. Pretty much the only exception to this is the national sport/obssession of rugby (think American football with fifteen players a side who all play two ways, minus the forward pass, minus the pads, minus most of the stoppages in play, and minus the timeouts). When the national team – generally the best (or close to it) in the world – bomb out in the World Cup of Rugby, as has occurred five out of six times, then there is a national backlash: coaches get death threats, players are criticised as being over-coddled prima-donnas, the country goes into a national funk.

The debate over smacking children can now be added to the list of exceptions to my empirically unsubstantiated claim. The law change in 2007 was accompanied by widespread public debate about smacking children that frequently (and predictably) descended into name-calling (“child beaters”, “nanny-staters” etc). There were of course genuine legal concerns about the appropriate boundaries of the criminal law, and particularly the issue of discretionary enforcement. At the eleventh hour, the Prime Minister at the time, Helen Clark (currently chair of the UN Development Group and the 61st most powerful woman on earth according to Forbes), and John Key, the leader of the opposition at the time and current Prime Minister, negotiated a compromise that is embodied by subsection 4. The law was enacted 113-7.

This did not end the debate. Those opposed to the new law initiated a non-binding referendum under the relevant legislation. The referendum question that was put to the voting public at the cost of several million dollars was: “Should a smack as part of good parental correction be a criminal offence in New Zealand?” So, somewhat paradoxically, a “no” vote expressed a desire to change the 2007 law in some way, while a “yes” vote expressed the desire to leave the law as is. The result of the referendum was clear: the vast majority (88%) of those who voted (about 56% of eligible voters) voted “no”.

John Key’s government is now faced with the issue of how to best respond politically to this result. Key and the ruling National Party have decided to oppose a bill that proposes to legalise a light smack by parents, meaning that the bill will in all likelihood die a quick death early in the legislative process. The Prime Minister’s position is based on his view that the law, as amended in 2007, is working satisfactorily.

This may be too rosy a view to take. Considerable weight is being placed on the common sense of police to correctly exercise their discretion to ignore inconsequential smacking.  As my old jurisrpudence professor Jim Evans points out, regardless of one’s views of the merits of smacking or not smacking children, the clarity of the current version of s 59 – part of the criminal law – is hardly ideal.

Writing as I do in the area of comparative counterterrorism law, I have dipped my toes [...]]]> Let me offer an Antipodean perspective on the vexed issue of the ranking of law journals, and how this might affect scholarly behaviour. Legal scholars in New Zealand are to some extent pulled in different directions. There is a perceived obligation to service the New Zealand market by writing about legal issues of relevance to New Zealand lawyers. At the same time, publishing in international journals is generally considered to be more prestigious, with the placement of an article in an esteemed journal from the United Kingdom (such as the Law Quarterly Review) traditionally being considered ideal. Placement of articles in the United States, to my knowledge, has been rare.

Writing as I do in the area of comparative counterterrorism law, I have dipped my toes in the somewhat strange – at least to my eyes – world of American law reviews (more on that later). But might I be better off trying to place articles in UK or Australian journals? Is it possible to compare the quality of law journals across different jurisdictions? The Australian Research Council (ARC) has attempted just this rather imposing task. Predictably, the release of the draft rankings last year sparked controversy. As detailed in this story, well regarded Australian law journals such as the Sydney Law Journal and Melbourne University Law Review received B grades. Top UK Journals, such as the Modern Law Review and the Oxford Journal of Legal Studies likewise received B’s. The Cambridge Law Journal and Criminal Law Review got only C’s. What journals occupied the hallowed stratosphere of the top grade, A*? American law journals such as the Harvard Law Review, Yale Law Journal and Connecticut Law Review.

While the grading exercise was of course conducted according to certain criteria, one has to be a little suspicious of the outcome, in the same way that one would doubt the result of a statistical analysis of NBA shooting guards that resulted in Michael Jordan being the 35th best ever. In what seem to be an updated list of grades, something approaching normal service has resumed: Harvard and Yale remain the same, but the Connecticut Law Review has been downgraded to a B; all the top UK journals mentioned earlier are now A* publications. That said, one can still look through the list and engage in the following exercise: “I can’t believe that [fill-in-the-blank] journal received a [fill-in-the-blank] grade!”

As far as a non-Australian academic is concerned, the response might simply be, “So what?” After all, Australia is a whole other country (sometimes referred to in New Zealand as “the West Island”). But I think the ARC rankings have an effect merely by existing. Which UK journal outside of the usual suspects should I submit an article to? Or should I submit to a second tier American journal? I probably would consult the ARC rankings. Similarly, when a promotion or hiring committee is wanting to get a quick snapshot of the quality of a scholar’s output, it’s not hard to imagine the ARC rankings being consulted in that situation either.

In my first year law course, I teach the students about the legislative process – suffice is to say that it is pretty riveting stuff, and is typically greeted by yawns and other expressions of disinterest. In any case, the one line summary I give at the end of class is as follows: before a bill can become law, it must pass through three readings in the House of Representatives and receive the assent of the Governor General. (The process is described more fully here.)

This process can drag out for years, or it can happen much more rapidly. Indeed former Prime Minister, Minster of Justice, Attorney General, Law Professor, and current President of the Law Commission, Geoffrey Palmer, once described the legislative process in New [...]]]>

In my first year law course, I teach the students about the legislative process – suffice is to say that it is pretty riveting stuff, and is typically greeted by yawns and other expressions of disinterest. In any case, the one line summary I give at the end of class is as follows: before a bill can become law, it must pass through three readings in the House of Representatives and receive the assent of the Governor General. (The process is described more fully here.)

This process can drag out for years, or it can happen much more rapidly. Indeed former Prime Minister, Minster of Justice, Attorney General, Law Professor, and current President of the Law Commission, Geoffrey Palmer, once described the legislative process in New Zealand as being the fastest law in the West. This is in part due to some fairly permissive Parliamentary procedures such as the lack of a quorum requirement and urgency provisions allowing the fast-tracking of legislation. But equally important are certain structural features of the New Zealand legal system. First, the New Zealand Parliament is unicameral – Parliament’s one-time upper house, known as the Legislative Council, was abolished on 1 January 1951. Second, the executive government continues to be able to pass laws as it likes, despite the advent of more coalitions in the era of mixed member proportional representation – a system introduced in 1993.

New Zealand is also a small country, with a population of just over four million people. (Sheep continue to outnumber humans by a factor of twelve to one.) And so news of any serious crime, particularly murder, is pretty much a guaranteed six o’clock news story. The same is true of any resulting criminal trial. Certain criminal trials dominate news coverage for a time. This is unsurprising. What is perhaps equally unsurprising, but nonetheless disturbing, is how the outcome of a criminal trial may lead to reactionary legislating.

On the 22nd of July, a jury found Clayton Weatherston guilty of the murder of ex-girlfriend Sophie Elliot. On 4 August 2009, the government (which, as noted, by definition commands a majority in Parliament) introduced the Crimes (Provocation Repeal) Amendment Bill to Parliament. This bill, as its title suggests, will repeal the partial defence of provocation currently contained in the Crimes Act 1961 once it is enacted in the near future. This episode  provides an interesting insight into the interplay between crime, the media, the public, and policy-makers.

Weatherston was convicted of murder, having stabbed his victim 216 times in her bedroom while the victim’s mother was locked outside. Add to these horrifying facts an attractive and by all accounts highly talented victim, and an apparently smug and narcissistic defendant testifying in his own defence, and you have one of the media trials of the year in New Zealand.

The aftermath of the trial led to a ground-swell of public support for the abolition of the defence of provocation, on which Weatherston had unsuccessfully relied. The government, as noted, has reacted swiftly to this public sentiment. But there are several reasons why things should be thought through carefully before change is made.

1.  Did the law fail? Before the defence is made out, the trial judge first has to allow the defence to go to the jury, which requires that there is enough evidence supporting a credible narrative of provocation. Second, the jury must determine whether the elements of the defence were made out. In this case, the defence went to the jury, which rejected it on the facts. It’s not self evident that the law failed.

2.  Is abolition of the defence of provocation required? Perhaps we think that it is wrong that the law allowed Weatherston to claim the defence in the first place. Perhaps some things should just not qualify as the basis for a claim of provocation, and we should expect people to react to certain situations in a non-violent manner. If that is the case, then the defence could be narrowed rather than abolished by defining certain things – a woman saying “I’m leaving you”, or a homosexual advance – as being outside the scope of the defence.

3.  Will abolition fix what we don’t like? My sense of the fallout from the trial is that much of the unhappiness is with Weatherston claiming the defence was that it resulted in the victim’s life being trawled through for all to see: it appeared as though the victim was on trial. But this argument isn’t really about the provocation defence, but rather about the adversarial system. If we are unhappy with the ugliness of an adversarial criminal trial, abolishing provocation is not going to fix that. (At this point, let me note in passing one of the less savoury aspects of New Zealand’s small town mentality: Weatherston’s lawyer, a well known Queen’s Counsel, has been showered with abusive emails, including one during the trial from a priest, and has had acid thrown over her car.)

4. Will there be unintended consequences? Might it be possible to conceive of a case where we might be sympathetic to a claim of provocation? If so, the non-availability of the defence could lead to an injustice. New Zealand has no degrees of murder, so for example no formal differentiation is made between premedidated murder and unpremeditated murder. It is true that under the Sentencing Act 2000, it is possible to impose less than a “life sentence” (requiring a minimum of 10 years’ imprisonment – I know, I know, peanuts by American standards) for murder where this would be manifestly unjust. First, the manifestly unjust standard is not an easy one to meet. Second, and perhaps more importantly, this doesn’t answer an objection based on fair labelling.

I’m sure that I’m only scratching the surface, and that there are plenty of other issues. But I’m not confident that they will be considered by the powers that be or by the public at large. I’m afraid, in other words, that we will provide rather too literal an example of the adage that hard cases make bad law.

Image: wikicommons, Alexander Efimov, GNU Free Documentation License

First off, let me begin by thanking Dan Solove for kindly inviting me to guest-blog here – it’s quite an honour. (I should also thank Dan for promoting me several ranks to Professor. At my institution, the University of Auckland, I am a mere lecturer; “Professor” is a title reserved for my more senior and august  colleagues!)

My home jurisdiction is New Zealand, the country (relatively) famous  at various times for its nuclear-free policy, Lord of the Rings, and as I discovered during my last trip to the US earlier this year, Flight of the Conchords.

Lacking Brett and Jermaine’s musical and comedic talent, I research and teach law. In social settings (especially when other topics of conversation are running out), I get asked what law I [...]]]>

First off, let me begin by thanking Dan Solove for kindly inviting me to guest-blog here – it’s quite an honour. (I should also thank Dan for promoting me several ranks to Professor. At my institution, the University of Auckland, I am a mere lecturer; “Professor” is a title reserved for my more senior and august  colleagues!)

My home jurisdiction is New Zealand, the country (relatively) famous  at various times for its nuclear-free policy, Lord of the Rings, and as I discovered during my last trip to the US earlier this year, Flight of the Conchords.

Lacking Brett and Jermaine’s musical and comedic talent, I research and teach law. In social settings (especially when other topics of conversation are running out), I get asked what law I specialise in. My stock answer is: “Public law” – essentially constitutional  and administrative law. This stock answer, particularly when I am overseas, often leads to a further inquiry: what does one study in New Zealand public law given that there is no written constitution?

It is certainly true that New Zealand is one of a small handful of countries that lacks what is commonly termed a “written constitution”. Actually much of New Zealand’s constitution is written down, just not all in one place. It consists of a mix of elements, including New Zealand statutes, constitutional conventions, and even the odd imperial enactment from the UK. Of course, even in states with written constitutions, such as the United States,  the text of the Constitution alone does not provide a complete account of constitutional law.

Still the question that forms the title to this post is a fair one,  not because New Zealand lacks a written constitution, but for two other reasons. First, New Zealand is a unitary state, so there are no  issues of power allocation between central government and states. Second, there is no judicial review of legislation: the New Zealand Parliament, not the Courts, has the final say on all legal matters. Thus significant legal reforms in New Zealand – for example, abolishing the death penalty for murder (1961) and later for all crimes (1989) , abolishing personal injury litigation and replacing it with a compensation scheme (1974), legalising abortion (1977), legalising consensual homosexual sodomy (1986) – were all the products of the legislative process.

None of this is to say that law making in New Zealand is unproblematic. Indeed, some of the features of New Zealand’s constitutional arrangements  are arguably not conducive to good legislating. These, and other legal topics,  I plan to  discuss in subsequent posts.

Image:  WikiCommons; by Gaelen Hadlett; Creative Commons Attribution ShareAlike 2.0 License