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The U.S. President’s speech to the U.N. General Assembly today sought to draw support from the example of a predecessor, Harry S Truman, who encouraged the founding in 1945 of the United Nations Organization. But on close comparison – that is, analysis more searching than that in a just-published, facile Time account – today’s speech is a far cry from the global vision of Truman era.

“The United Nations represents the idea of a universal morality, superior to the interests of individual nations. Its foundation does not rest upon power or privilege; it rests upon faith. They rest upon the faith of men in human values – upon the belief that men in every land hold the same high ideals and strive toward the same goals for peace and justice.”

So said Truman in 1950 to the General Assembly in New York, delivering the traditional head-of-state speech on behalf of his country.

In the aftermath of World War II – a war that he had brought to a close following the death-in-office of President Franklin D. Roosevelt – Truman pushed for establishment of an international organization that would bring collective security to a world that, then as now, was troubled. His United States hosted the diplomatic conference at which the Charter of the United Nations was adopted on June 26, 1945. That Charter lays out a plan for international regulation of the use of military force – a plan established by, to quote the Charter’s very first words:

“We the peoples of the United Nations determine to save succeeding generations from the scourge of war…”

U.S. President Harry S Truman addresses 1945 San Francisco Conference to draft the Charter of the United Nations. (credit)

In April 1945, fewer than two weeks after VJ Day, Truman had opened that San Francisco Conference with a speech that placed collective security over the whims of any single country. To quote President Truman:

“The essence of our problem here is to provide sensible machinery for the settlement of disputes among nations. Without this, peace cannot exist. We can no longer permit any nation, or group of nations, to attempt to settle their arguments with bombs and bayonets.”

Five years later, his 1950 address to the General Assembly acknowledged:

“Governments may sometimes falter in their support of the United Nations, but the peoples of the world do not falter.”

By way of example, Truman in 1950 cited the “widespread,” “overwhelming,” and collective efforts of the United Nations to repel the then-recent invasion of South Korea. “In uniting to crush the aggressors in Korea” – note that Truman spoke of crushing aggressors, and not of destroying an entire country – he maintained that countries had “proved that the charter is a living instrument backed by the material and moral strength of members, large and small.”

In the U.S. head of state’s General Assembly speech today, the world heard a very different address, by a very different holder of the office of the U.S. President. Today’s speech referred to Truman and Truman-era policies like the Marshall Plan as purveyors of “three beautiful pillars,” of “sovereignty, security and prosperity.”

It must, however, be noted that no reference to sovereignty or prosperity may be found in the two pivotal Truman speeches. Not one of the three quoted words appears in the speech by which Secretary of State George Marshall announced his eponymous plan, either. Security does receive mention in Truman’s April 1945 speech, but in a global, collective, and cooperative, and not an individual nation-state, sense, as here:

“With firm faith in our hearts, to sustain us along the hard road to victory, we will find our way to a secure peace, for the ultimate benefit of all humanity.”

Truman’s envisagement of “peace, for the ultimate benefit of all humanity” exists worlds away from the enshrinement in today’s speech of individual state sovereignty.

YPRES, Belgium – Beautiful vistas and bright sunlight cannot blind the visitor to the pain of this place.

This place is Flanders Fields, the name given to the part of west Belgium, close to the French border, that saw intense battles and horrendous casualties during World War I. This town – Ypres in French and Ieper in Flemish, but called “Wipers” by British WWI soldiers – played a central role. So too nearby Passchendaele/Passendale. Both towns were leveled, and like many in the region, were rebuilt in the old manner after the war ended.

During the war, upwards of half a million persons died in this area alone.

Our visit to Flanders Fields occurred on the 4th of July. Memories linger, and were sparked again by today’s commemoration of the 100th anniversary of the 1st large-scale use, in Ypres, of chemical weapons; mustard gas, to be precise. It was the 3d compound to be attempted, after chlorine and phosgene proved less reliable as lethal weapons, according to our tour guide, Raoul Saracen, a retired history teacher. Initial efforts to fight back against chemicals also were crude: before the development and widespread distribution of gas masks, Canadian troops resorted to breathing through kerchiefs soaked in ammonia-rich urine.

The cruelty of chemical warfare did not stop its use. Recording other places where chemicals have been used was a signpost in Langemark, the cemetery where German soldiers (including several with whom I share a surname) are buried. Tokyo, Japan, Halabja, Iraq, and Ghouta, Syria, receive mention, though more recent gassing sites in that last country have yet to be added.

The thousands of headstones in the many Flanders Fields cemeteries of course give pause. So too the cramped trenches, still on display at Sanctuary Wood Museum.

Yet it was a different site that stole my breath – the “dressing station,” a kind of field hospital, at Essex Farm Cemetery. The station’s cement-bunker cells were small, dark, and saddening, a truly concrete reminder of the scourge of war.

 

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.

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.

“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.

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!

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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.