Comments on yesterday’s Senate hearing with former FBI Director James Comey

Pleased to have contributed to reporter Sean Illing’s Vox roundups of academic commentary on yesterday’s testimony by former FBI Director James B. Comey before the U.S. Senate Select Committee on Intelligence. (photo credit)

Illing 1st asked whether, in “Comey’s introductory remarks or in his exchanges with senators,” the witness made “a case that President Trump attempted to obstruct justice.” My response here.

Next, he asked about a statement released by the President’s personal lawyer, which said that Comey had engaged in “unauthorized disclosure of privileged information.” My response, which treated the constitutional doctrine of executive privilege, here.

Un petit part de la part de la planète

Do Your Part,” Allied posters proclaimed during World War II. Women were urged to join the U.S. Army Auxiliary to work at defense plants, families were pressed to keep farms producing, and all were advised to keep their mouths shut. This coming-together defeated Axis enemies and gave rise to unprecedented postwar intergovernmental cooperation.

That 72-year-old global infrastructure is under threat. Last week saw fractious meetings at NATO headquarters (where I’m due to bring students later this month) and Taormina (just 75 miles north of the Siracusa summer school where I was then teaching). Today it’s the President’s invocation of the provision permitting U.S. withdrawal, in about 4 years, from the 2015 Paris Agreement on climate change, to which 195 – nearly all – the countries in the world have agreed.

The news spurs reflection on the very small part I played in the development of the Paris Agreement.

As with most international accords, this one did not happen on the spur of the moment. Rather, countries had engaged in consultations and negotiations for years before the summit. France was especially active, eager to accomplish something significant in October-November 2015, when it would host COP21, the 21st Conference of the Parties to the 1992 U.N. Framework Convention on Climate Change.

Thus in June 2015 I joined French and American colleagues at a symposium entitled “Le Changement climatique, miroir de la globalisation (Climate Change, Mirror of Globalization),” a pre-summit preparatory meeting whose cosponsors included the Collège de France and Fondation Charles Léopold Mayer pour le Progrès de l’Homme. Our interventions aided thinking about the impending summit.

My own contribution, “Le changement climatique et la sécurité humaine,” reprised a chapter published in Regards croisés sur l’internationalisation du droit : France-États-Unis (Mireille Delmas-Marty & Stephen Breyer eds., 2009). As indicated in the English version, “Climate Change and Human Security,” the essay demonstrated that litigation would not proved a fruitful method for combatting climate change. It thus advocated a human security approach, one drawn from U.S. legal traditions like the 1941 Four Freedoms speech of President Franklin Delano Roosevelt and the 1945 Statement of Essential Human Rights of the American Law Institute.

The essay concludes:

“Emphasis on state duty carries with it an assumption that legislative and executive officials will assume their obligation to avoid harm from occurring. Such officials may not assume, as seems the wont of some who operate under a litigation model, that they may act as they wish unless and until a court steps in to order some belated and imperfect sanction for the wrongs they have committed. A state that endeavors to achieve human security, moreover, is likely to fashion comprehensive, before-the-fact remedies. That is preferable even in isolated cases; in other words, we would rather have an agent of the state eschewed torture than have to compensate a victim after she has suffered state torture. This comprehensive, before-the-fact framework is even more preferable with regard to human insecurities that have communitywide, even planetary consequences – to name one, the threat to human security posed by climate change.”

Theories like these undergird the agreement reached in fall 2015. They yet may maintain a firm hold in these next 4 years.

In passing: Judge John T. Noonan, Jr.

“The defendant before you is an innocent man.” That claim, rarely heard in a court of appeals and still more rarely sustained, compels the attention of the judge. All our provisions for appeal, our careful scrutiny of the record, our hearing of argument, our conferencing and analysis are designed to prevent just such a perversion of the criminal process as the infliction of punishment upon an innocent person. It is not our way to imprison a defendant because we do not like him or find his conduct worthy of disapproval. If he is to be stamped a felon by federal law, he must have committed a federal crime. If he has not, he is innocent. Such Marsh contends he is. Such Marsh should be found to be.

So wrote Judge John T. Noonan Jr., who died Monday at age 90. (photo credit) It appeared in United States v. Marsh, a 1994 decision by the U.S. Court of Appeals for the Ninth Circuit.

For all but a very few, Marsh was a mine-run case. And yet, I personally have never forgotten the quoted passage. For I was the Assistant Federal Public Defender who, late on the morning of November 3, 1993, stood before 3 judges – all of them slouched in their chairs, stern-faced and not a little tired after hearing a long string of short oral arguments – and began the scant 10 minutes allotted for her client’s quixotic appeal with these words:

“The defendant before you is an innocent man.”

It is a bold claim for any defense lawyer to make, in any case. It was especially bold in this case, which involved same-sex phone-sex.

Years earlier, my then-quite-young-and-poor client had met a not-poor, then-in-the-prime-of-his-life man. For decades they were often apart yet still in touch, often communicating by phone. By the early 1990s the elder man was quite elderly. His grown daughter discovered the still-continuing phone calls, and the consequent transfers of her father’s funds. The discovery spurred shock, then outrage, and then a federal complaint, trial, and conviction.

The trial transcript indicates that many in the courtroom found the underlying conduct and calls (the sexual content of which was discussed in graphic detail) distasteful, perhaps even repulsive. Perhaps it was for that reason that the prosecutor forgot to elicit any evidence of an essential element of this charged violation of the Hobbs Act; in this extortion case, to be precise, the prosecutor forgot to elicit even a scintilla of testimony to the effect that the alleged victim paid money out of fear.

It was my position that this utter failure to prove a material element of the offense compelled reversal of the conviction:

“The defendant before you is an innocent man.”

On hearing these words, 2 on the panel looked annoyed – no surprise given the overall tone of the case. But the 3d sat up straight and began asking questions. It was Judge Noonan, a Berkeley Law professor and noted scholar of law and Catholicism, whom President Ronald Reagan had appointed to the 9th Circuit in 1985. Noonan’s questions and my answers eventually produced the passage quoted above, published in dissent from the panel majority’s decision to sustain the conviction.

Anyone who has practiced federal criminal defense will understand this as a kind of victory, despite the larger loss of the appeal.

I met Judge Noonan in person not long after, in a lunch arranged by my supervisor, then-Federal Public Defender Barry Portman, another giant in the San Francisco federal courthouse. Only then did I learn that the question of when – even whether – words alone can provide the basis for criminal punishment was an issue with which the judge long had grappled. His thoughts gelled in one of his several significant writings, Bribes: The Intellectual History of a Moral Idea (1987). (Other works inclined toward legal history and philosophy, among them his masterful book-length case study, The Antelope (1990).) The judge was erudite, a gentleman – even courtly – and I was honored to have met him.

When I entered academia, Marsh joined the repertoire of practice stories I deployed to engage my Criminal Law classes. The experience stayed with me – and long after the decision, I learned that this lingering effect was not mine alone. A student alerted me to the following passage in a symposium piece, “The Foxboro Referee, the Boston Judge, the County Juror, and the Conscience of the Court,” 2003 U. Ill. L. Rev. 1403:

Call it the heart or the spirit or the inner person, there are in each of us perceptions and convictions that cannot be reduced to rules external to us. It is that internal core of the judge that a good advocate seeks to reach. “I represent an innocent man,” declared Diane Marie Amann in a criminal appeal I heard argued six years ago. I had never before heard such a claim. It spoke to something in me more tellingly than a reference to due process of law would have done. It set in motion thought and action …

The author, of course, was Noonan, discussing judges’ professional responsibility. The passage revealed that for him as for me, Marsh had been no mine-run case. It revealed that Judge Noonan still pondered my unexpected yet accurate protestation of my client’s innocence and, indeed, the injustice of my client’s conviction. It revealed that he still pondered his own “thought and action”: his lone vote against conviction, without concern about what mid-1990s America might think of the underlying conduct. It revealed a quintessential judge, whom we will miss.

IntLawGrrls’ birthday, captured on video

My thanks to all who came here to Athens, Georgia, earlier this month to celebrate IntLawGrrls blog, which I founded a decade before, on March 3, 2007. I saw old friends and made new ones, and reveled in watching networks form.

I’m particularly proud that our conference operated to assist many participants who are still building their careers. They included several of whom I’m especially proud:

► J.D. or LL.M. candidates, among them my students: Victoria Barker, new Editor-in-Chief of our Georgia Journal of International & Comparative Law; Chanel Chauvet, a Dean Rusk International Law Center Student Ambassador set to intern this summer in the global legal department of CARE International; LL.M. candidate Urvashi Jain; and Hannah Williams, President of Georgia Law’s International Law Society;

► Ph.D. candidates, including my former Georgia Law student Kaitlin Ball, now studying in the at Cambridge University in the United Kingdom; and

► Advocates like my former California-Davis students Monica Feltz, Executive Director, International Justice Project, Newark, New Jersey, and Kathleen A. Doty, Director of Global Practice Preparation at Georgia Law’s Dean Rusk International Law Center, as well as an M.A. Candidate in Political Science & International Affairs at our university’s School of Public & International Affairs.

Deep thanks too to Işıl Aral, Ph.D. student at England’s University of Manchester and co-founder there of the Women in International Law Network. She videotaped segments of our conference, including the start of my own remarks at our lunch-hour plenary. Reposted above and at Exchange of Notes and IntLawGrrls blogs, the video also includes remarks by Indiana-Indianapolis Law Associate Dean Karen E. Bravo, American Society of International Law President Lucinda A. Low, Temple Law Professor Jaya Ramji-Nogales, and Stanford Visiting Law Professor Beth Van Schaack.

Enjoy!

Women, children, men, 63K strong, join John Lewis in Atlanta’s largest-ever march

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Total geeks.

img_0615Of all the things that Kate, Emma, and I saw in our hours of marching – a very slow couple miles, sloshing in rain boots – it was the sign at right that excited us most. The woman seemed surprised when we asked her if we could take a photograph. We explained:

“We’re international lawyers. Treaties matter to us.”

And thus we commemorated the woman’s tribute to Native Americans.

img_0582That was just one group represented at today’s march through downtown Atlanta. It began at the city’s 2-1/2-year-old Center for Civil & Human Rights. Then it went past Phillips Arena (home of the NBA Atlanta Hawks), the Georgia Dome (set to host tomorrow’s NFC championship, when the Atlanta Falcons plan to #RiseUp against the Green Bay Packers), and the Falcons’ new home, a still-under-construction nest of glass and steel called the Mercedes-Benz Stadium. It ended, as depicted at top, at Georgia’s Capitol, the aptly named Golden Dome.

Besides Native Americans, an array other groups were represented in countless signs, many of which had been sheathed in plastic against the morning downpour.

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Especially prominent were felines and feline references, and more pink than you’d find in a Pepto-Bismol factory.

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img_0593img_0598Families and friends (old and new) marched, all together.

Then, with a replica of the Statue of Liberty standing by, they listened to speeches by an array of community leaders – not least, U.S. Rep. John Lewis, the civil rights icon in whose 5th District the march occurred.

img_0609Organizers said 63,000 came to Atlanta, making it the city’s largest-ever march. They joined literally millions, including ‘Grrls (even non-marchers) in D.C., Sydney, and Philadelphia. Cymie’s crowd count has been eclipsed by the news that 2.5 million are said to have marched around the world.

Time now to convert good feelings and firm resolve to concrete action.

Not-marchers on the march

nobloodforoilSo, I don’t march.

I stayed home when millions protested the invasion of Saddam Hussein’s Iraq. Stayed home for “No Blood for Oil” too (though I did have the T-shirt, at left). Avoided the streets of my Paris sabbatical home on May Day 2002, when half a million marched to the chants of “Là-Bas Le Pen.”

Pretty much avoided all public demonstrations since childhood, never having really seen the point of taking to the streets instead of concrete action – that is, instead of litigating/teaching/reasoning/writing/policymaking toward lasting solutions.

So why march today?

► Because the promise of the election of Barack Obama – hands down, the best President of my lifetime – so soon was dashed by never-believed yet oft-repeated undercuttings of his citizenship. The spurious claims and the events that ensued sunk the hope that had lifted many of us in 2007 and 2008. Fell particularly hard on those of us who are immigrants, or who count immigrants among our loved ones.

aliceroom3Because in the last years we’ve been forced to swallow bile: cruel falsehoods about the 1st woman to be nominated by a major U.S. political party; harsh slaps against everyone who has endured sexual assault; soulless insults about every disadvantaged group imaginable.

► Because Looking-Glass intrigue belongs to the fantasy world of Lewis Carroll, not to the real world in which we all must live.

Because aspirations to human dignity, equality, liberty, and justice, without borders, will not withstand anti-“globalist” attack unless those of us who hold these values dear come to their defense.

Because if we fail to object, we fail our children.

To quote other ‘Grrls:

“It seems like a day when numbers matter.”

“I couldn’t not go.”

And so even we not-marchers march, in D.C., in Philadelphia, and, at last count, in nearly 700 other places around the world.

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(Cross-posted from IntLawGrrls)

Quote in study of ICC and gender justice featured in EJIL: Talk! symposium

politicsWhat a welcome surprise to read words I penned a few years ago quoted-within-a-quote in a post today at EJIL: Talk!

To be precise, Washington & Lee Law Professor Mark Drumbl wrote:

“Gender justice initiatives at the ICC remain entwined with other advocacy movements. Notable in this regard is the push for children’s rights. The pairing of women’s rights with children’s rights – while perhaps seeming somewhat odd – does reflect the historical association, in Diane Marie Amann’s words (cited by Chappell), of ‘women and children as bystanders, beings not fully conscious of the world around them’ within the Grotian Weltanschauung.”

The quote, from my essay “The Post-Postcolonial Woman or Child,” appears in Drumbl’s contribution to a terrific EJIL: Talk! symposium analyzing The Politics of Gender Justice at the International Criminal Court (Oxford University Press 2015), an important book by Louise A. Chappell (below right), Professor and Australian Research Council Future Fellow, School of Social Sciences, University of New South Wales, Sydney, Australia.

chappellChappell (who, like Drumbl, is an IntLawGrrls contributor) traces her subject through chapters that “represent,” “recognize,” “redistribute,” and “complement” gender justice at the ICC, an institution that “nested” “gender advocacy,” as Drumbl puts it in his review, entitled “Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes.” He adds:

“In short: her superb book is a must-read.”

Joining Drumbl in this symposium are:

► An opening post by EJIL: Talk! Associate Editor Helen McDermott, a post-doctoral Research Fellow in law and armed conflict in the Oxford Martin School Programme on Human Rights for Future Generations at the University of Oxford, England.

► An introduction by Chappell, who is due to close the conversation later this week (latter post now available here).

“Beyond a Recitation of Sexual Violence Provisions: A Mature Social Science Evaluation of the ICC” by Patricia Viseur Sellers, who serves as the International Criminal Court Prosecutor’s Special Adviser for Prosecution Strategies, is a Visiting Fellow at Kellogg College, Oxford University, and the former Legal Advisor for Gender and Acting Senior Trial Attorney at the International Criminal Tribunal for the Former Yugoslavia.

“Gender Justice Legacies at the ICC” by yet another IntLawGrrls contributor, Valerie Oosterveld, Associate Dean (Research and Graduate Studies), Associate Professor, and Deputy Director of the Centre for Transitional Justice and Post-Conflict Reconstruction, University of Western Ontario Faculty of Law, London, Ontario, Canada.

To crib from Drumbl’s post, the series is a must-read.