Analysis and Commentary on Human Rights

The Death Penalty in the United States and the Force of Regional Human Rights Law

Justia guest columnist and U.C. Berkeley School of Law professor Saira Mohamed discusses how the recent botched execution in Oklahoma signals the impact regional human rights laws can have beyond borders. Mohamed explains how the development of various European laws and corporate policies have contributed to changes in lethal injection practices in the United States. She notes that European opposition to capital punishment led to the adoption of a European Union regulation restricting trade in drugs that could be used for the purpose of lethal injection. Mohamed concludes that despite the common perception that human rights laws are toothless, limited laws such as those in Europe demonstrate the capacity of human rights law to have wide application, shape state practices, and impact human lives.

Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts

Justia guest columnist and Touro Law Center professor Rodger Citron analyzes the Supreme Court's decision in the Kiobel case, which concerned the scope of the Alien Tort Statute (“ATS”), a federal statute relied upon by lawyers asserting claims of human rights violations. In particular, Citron focuses on how Kiobel fully illustrates the judicial philosophy of Chief Justice Roberts. In addition, he offers seven different ways of looking at the decision.

Legal Limits on the Forced Feeding of Hunger-Striking Guantanamo Bay Detainees

Justia columnist and Cornell law professor Michael Dorf comments on the law applicable to the forced feeding, via tubes, of those Guantanamo detainees who refuse to eat, as they are on a hunger strike, and are becoming dangerously weak. Human rights groups condemn the forced feeding as cruel, but the government says that it is better than the detainee’s dying. With U.S. law unclear on the force-feeding issue as it related to detainees, Dorf analyzes the situation, citing two relevant Supreme Court precedents and other legal sources that might shed light on the issue. He also suggests that the detainees’ best hope, in this situation, might be to invoke international law, though their chances of prevailing will still be slim.

Some Good News for Human Rights Lawyers in the Supreme Court’s Interpretation of the Alien Tort Statute

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent ruling on the Alien Tort Statue (ATS), which had been interpreted by many human rights attorneys as opening the way for serious foreign wrongs to be litigated in U.S. courts, including the Supreme Court. The conservative Justices rejected that interpretation, however, and their votes won the day, angering and disappointing human rights lawyers. Still, Dorf finds a few positives for the human rights law community in the Court's decision, as well, citing a handful of ATS approaches that may remain to be used.

Unstated Findings of the Detainee Treatment Report: Bush/Cheney & Co. Are War Criminals

Justia columnist and former counsel to the president John Dean comments on the bipartisan Detainee Treatment report that was recently released by The Constitution Project (TCP). Dean characterizes the report’s findings as nothing less than devastating. In particular, Dean notes that the report leads Dean—who serves on the TCP committee on Liberty & Security—to conclude that Vice President Dick Cheney, as well as others, engaged in war crimes. Dean focuses especially on TCP’s most notable findings in his column.

Is Obama’s Policy of Targeted Killings Really Worse than Bush’s Torture Policy?

Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.

A Review of the Documentary Mea Maxima Culpa: Silence in the House of God, Which Reveals the Paradigm of Institution-based Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton reviews a recent HBO Films documentary about child sex abuse within the Catholic Church, noting that the paradigm that the documentary reveals also applies to many other institutions where child sex abuse has occurred, including Penn State, the Boy Scouts, other religious groups, other schools, and many more. Mea Maxima Culpa is especially heart-wrenching, Hamilton explains, because the victims of sex abuse were deaf boys, and some of their families had never learned to sign—making them all the more vulnerable to the predation. The documentary, Hamilton contends, surely deserves an Oscar nod, especially as it captures the paradigm of institution-based abuse, covering the victims, the perpetrators, and the institution.

Paul Ryan and Human Rights

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on presumed Republican vice-presidential candidate Paul Ryan’s positions on human rights issues. Reminding readers that even a VP may have great influence on human rights issue, as Dick Cheney certainly did with regard to issues relating to torture, Mariner notes that if Mitt Romney is elected president, Ryan, too, may have considerable sway in this area. Mariner notes first that Ryan sees rights as natural and God-given, and then goes on to note that Ryan is extremely pro-life, even if the pregnant woman’s life is in danger, and extremely anti-gay-rights. Mariner notes that when it comes to foreign policy, Ryan seems more open to certain compromises, and she is troubled, especially, by Ryan’s reportedly enlisting the advice of Elliot Abrams, whose views on human rights issues are, Mariner notes, very disturbing.

A Legal Challenge to Targeted Killings

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner asks the following question, which she notes is far from hypothetical, as three Americans have already been killed: Does the Executive Branch—including, specifically, the Pentagon and the CIA—possess unreviewable power under the US Constitution to carry out targeted killings of Americans overseas? With an ACLU/Center for Constitutional Rights lawsuit being filed today to challenge the legality of targeted killings carried out by the United States, the contention that these scenarios fall under the “political question” doctrine and thus cannot be adjudicated in court, will be tested soon.

Journalists, Protesters, and Other Terrorist Threats

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner draws on a recent Human Rights Watch report that she co-authored, regarding the host of post-9/11 counterterrorism laws that have been passed, to question whether these laws cast too wide a net.  As Mariner explains, the report reveals that, in fact, many of the laws have proved overbroad, and that very overbreadth has meant that they have swept in journalists, social protesters, opposition figures, and other disfavored groups who have had nothing to do with terrorism.  Mariner provides specific examples to prove her thesis, citing instances of the misuse of counterterrorism laws to detain protesters in Bahrain, and to detain journalists in Ethiopia.  She also focuses on troublingly unspecific UN Security Council resolutions regarding counterterrorism, that may well open the door to abuse.

A Thousand Years of Solitude

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the situation endured by the more than a thousand prisoners who are held in solitary confinement, in tiny cells, in the Security House Unit (SHU) at California’s Pelican Bay State Prison—with about half serving terms of more than ten years, and some serving terms of more than twenty years. Mariner covers the Center for Constitutional Rights’s class action, filed just last week, challenging the SHU’s solitary confinement regime. She also conveys the Draconian punishment the prisoners suffer, deeming it a combination of sensory deprivation and social isolation, with only the most meager chance for exercise, and even phone calls such as those conveying the news of a death in the family allowed only at authorities’ discretion. Visitation, too, is harshly limited, as is mental health care. Mariner supports the CCR’s effort to challenge these and other practices—including the double-celling of prisoners in the tiniest of cells, and the highly questionable “prison gang validation” process that leads to incarceration at the SHU, as opposed to elsewhere in California’s prison system. Chances for parole, meanwhile, are slim to none. And while the UN has suggested abolishing indefinite solitary confinement, California still employs just such confinement at the SHU.

Ending Prison Rape

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner describes America's very slow progress toward ending prison rape. Mariner chronicles developments in this area from the 70s to today. She focuses especially on early empirical studies; a landmark 2001 Human Rights Watch Report; and the subsequent legislation the report helped trigger, The Prison Rape Elimination Act (PREA), which was passed in 2003. Mariner also notes that only last Thursday, May 17—nearly nine years after PREA’s passage—did the Justice Department finally issue the national standards on prison rape that PREA requires. Mariner describes in detail these important standards and their reach, and deems them to constitute a critical step forward, as Attorney General Holder has said.

The Trial of the Century?

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the official beginning of the military commission proceedings against Khalid Shaikh Mohammad and his four co-defendants. As Mariner notes, the United States is seeking the death penalty against all five men, who are accused of a litany of crimes relating to the 9/11 attacks: terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury. Mohammad, as Mariner explains, has taken responsibility for the attacks, and the other four defendants are alleged to have played key organizational or financial roles in the attacks. Mariner argues that for the verdict in these cases to be seen as just, the defendants must be granted basic procedural guarantees and must face an impartial and independent tribunal. However, Mariner argues, neither the procedures that will be used, nor the tribunal itself, fit these requirements. In particular, Mariner emphasizes the key differences between judicial independence and military discipline, when it comes to the administration of justice, and urges that civilian courts, not courts-martial, should be the tribunals adjudicating these cases. She cites the Zacarias Moussaoui civilian trial as a success in showing that the civilian justice system can work well even in terrorism cases, and suggests that these cases, too, should have gone forward in the civilian justice system.

The Indefinite Detention of Citizens and Non-Citizens Under the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the provisions of the NDAA (National Defense Authorization Act) relating to the detention of citizens and non-citizens. She begins by noting that, last week, the tenth anniversary of the military prison at Guantanamo occurred, and was the subject of comment by the media, but this brief focus on the prison and its prisoners was the exception to the rule. In addition, she points out that the NDAA addresses the very issue that Guantanamo embodies, indefinite detention without charge, and does so in a way that has sparked sharp criticism from conservatives and liberals alike. Mariner focuses here, however, on a less-remarked aspect of the NDAA: Although its provision for indefinite detention for American citizens has been highly controversial, far less attention has been paid to its provision for indefinite detention for non-citizens—of which there are 171 being currently held at Guantanamo; all but five indefinitely (of the five, four were convicted and one faces terrorism and other charges). Mariner calls for more attention to the NDAA’s treatment of non-citizens, reminding readers that indefinite detention for Americans remains theoretical, but indefinite detention for those incarcerated at Guantanamo is very real.

Human Rights Scholars and Human Rights Professionals: Time to Talk?

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner describes a schism between human rights scholars, on one hand, and human rights professionals, on the other. On the good side, Mariner notes, both scholarship and practice in human rights have thrived over the last two decades—and yet, she contends, there is a troubling disconnect between the two. Mariner’s own survey found that human rights professionals see a wide—even, to some, “enormous”—gap between theory and practice, and rarely read academic articles on human rights. The professionals complained, among other points, that the academics were encouraged to come up with counterintuitive theories, when often the intuitive ones were far closer to the mark. In turn, Mariner notes, the academics might rightly charge that the professionals fear that too much analysis of a problem will impede or delay effective action, as in “Hamlet,” when in fact sustained thought about a human rights issue could bear significant fruit. She thus calls on the two groups to engage more deeply with each other’s work, to the benefit of both. Finally, Mariner offers some specific suggestions as to how such engagement could effectively occur.

An Endless War on Terror

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the aggressive new War on Terror bills currently pending in Congress. With Osama Bin Laden dead and all the living alleged 9/11 perpetrators in custody awaiting trial, Mariner notes that the bills’ timing seems odd. She also contrasts the long-lasting War on Terror with the events of the post-World-War-Two period in American history. If the bills that are pending pass, she explains, they will go significantly beyond prior War on Terror policies, which were already broad to begin with. Mariner describes the bills as dangerous and irresponsible, and points to the irony that Congress can make bipartisan compromises in the fraught area of counterterrorism, but not when it comes to sorely needed economic measures. If the bills pass, Mariner reports, they will essentially make Guantanamo permanent, embrace detention without trial—which had previously been seen as un-American—and make the military the presumptive detaining and prosecuting authority in certain categories of cases. Mariner points out that even the Bush Administration tried and convicted many terrorism suspects in federal court, rather than resorting to military justice. Finally, she expresses hope that President Obama will veto the bills, as he has threatened to do.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more