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Today's
Stories
October
25 / 26, 2003
Karyn
Strickler
Down
with Big Brother's Spying Eyes
October
24, 2003
Kurt Nimmo
Ashcroft's
War on Greenpeace
Lenni Brenner
The Demographics of American Jews
Jeffrey
St. Clair
Rockets,
Napalm, Torpedoes and Lies: the Attack on the USS Liberty Revisited
Sarah Weir
Cover-up of the Israeli Attack on the US Liberty
David
Krieger
WMD Found in DC: Bush is the Button
Mohammed Hakki
It's Palestine, Stupid!: Americans and the Middle East
Harry
Browne
Northern
Ireland: the Agreement that Wasn't
October
23, 2003
Diane
Christian
Ruthlessness
Kurt Nimmo
Criticizing Zionism
David Lindorff
A General Theory of Theology
Alan Maass
The Future of the Anti-War Movement
William
Blum
Imperial
Indifference
Stew Albert
A Memo
October
22, 2003
Wayne
Madsen
Religious
Insanity Runs Rampant
Ray McGovern
Holding
Leaders Accountable for Lies
Christopher
Brauchli
There's
No Civilizing the Death Penalty
Elaine
Cassel
Legislators
and Women's Bodies
Bill Glahn
RIAA
Watch: the New Morality of Capitalism
Anthony Arnove
An Interview with Tariq Ali
October 21, 2003
Uri Avnery
The
Beilin Agreement
Robert Jensen
The Fundamentalist General
David
Lindorff
War Dispatch from the NYT: God is on Our Side!
William S. Lind
Bremer is Deaf to History
Bridget
Gibson
Fatal Vision
Alan Haber
A Human Chain for Peace in Ann Arbor
Peter
Linebaugh
On the Bicentennial of the Hanging of Thomas Russell
October
20, 2003
Standard
Schaefer
Chile's
Failed Economy: an Interview with Michael Hudson
Chris
Floyd
Circus Maximus: Arnie, Enron and Bush Maul California
Mark Hand
Democrats Seek to Disappear Chomsky
& Nader
John &
Elaine Mellencamp
Peaceful
World
Elaine
Cassel
God's
General Unmuzzled
October
18 / 19, 2003
Robert
Pollin
Clintonomics:
the Hollow Boom
Gary Leupp
Israel, Syria and Stage Four in the Terror War
Saul Landau
Day of the Gropenfuhrer
Bruce Anderson
The California Recall
John Gershman
Bush in Asia: What a Difference a Decade Makes
Nelson P. Valdes
Bush, Electoral Politics and Cuba's "Illicit Sex Trade"
Kurt Nimmo
Shock Therapy and the Israeli Scenario
Tom Gorman
Al Franken and Al-Shifa
Brian
Cloughley
Public Propaganda and the Iraq War
Joanne Mariner
A New Way to Kill Tigers
Denise
Low
The Cancer of Sprawl
Mickey Z.
The Reverend of Doom
John Chuckman
US Missiles for Israeli Nukes?
George Naggiar
A Veto of Public Diplomacy
Alison
Weir
Death Threats in Berkeley
Benjamin Dangl
Bolivian Govt. Falling Apart
Ron Jacobs
The Politics of Bob Dylan
Fidel Castro
A Review of Garcia Marquez's Memoir
Adam Engel
I Hope My Corpse Gives You the Plague
Poets' Basement
Jones, Albert, Guthrie and Greeder
October
17, 2003
Stan Goff
Piss
On My Leg: Perception Control and the Stage Management of War
Newton
Garver
Bolivia
in Turmoil
Standard
Schaefer
Grocery Unions Under Attack
Ben Terrall
The Ordeal of the Lockheed 52
Ron Jacobs
First Syria, Then Iran
David
Lindorff
Michael
Moore Proclaims Mumia Guilty
October
16, 2003
Marjorie
Cohn
Bush
Gunning for Regime Change in Cuba
Gary Leupp
"Getting Better" in Iraq
Norman
Solomon
The US Press and Israel: Brand Loyalty and the Absence of Remorse
Rush Limbaugh
The 10 Most Overrated Athletes of All Time
Lenni
Brenner
I
Didn't Meet Huey Newton. He Met Me
Website of the Day
Time Tested Books
October
15, 2003
Sunil
Sharma / Josh Frank
The
General and the Governor: Two Measures of American Desperation
Forrest
Hylton
Dispatch
from the Bolivian War: "Like Animals They Kill Us"
Brian
Cloughley
Those
Phony Letters: How Bush Uses GIs to Spread Propaganda About Iraq
Ahmad
Faruqui
Lessons
of the October War
Uri Avnery
Three
Days as a Living Shield
Website
of the Day
Rank and File: the New Unity Partnership Document
JoAnn
Wypijewski
The
New Unity Partnership:
A Manifest Destiny for Labor
October 14, 2003
Eric Ridenour
Qibya
& Sharon: Anniversary of a Massacre
Elaine
Cassel
The
Disgrace That is Guantanamo
Robert
Jensen
What the "Fighting Sioux" Tells Us About White People
David Lindorff
Talking Turkey About Iraq
Patrick
Cockburn
US Troops Bulldoze Crops
VIPS
One Person Can Make a Difference
Toni Solo
The CAFTA Thumbscrews
Peter
Linebaugh
"Remember
Orr!"
Website
of the Day
BRIDGES
October
11 / 13, 2003
Alexander
Cockburn
Kay's
Misleading Report; CIA/MI-6 Syrian Plot; Dershowitz Flaps Broken
Wings
Saul Landau
Contradictions: Pumping Empire and Losing Job Muscles
Phillip Cryan
The War on Human Rights in Colombia
Kurt Nimmo
Cuba and the "Necessary Viciousness" of the Bushites
Nelson P. Valdes
Traveling to Cuba: Where There's a Will, There's a Way
Lisa Viscidi
The Guatemalan Elections: Fraud, Intimidation and Indifference
Maria Trigona and Fabian
Pierucci
Allende Lives
Larry
Tuttle
States of Corruption
William A. Cook
Failing America
Brian
Cloughley
US Economic Space and New Zealand
Adrian Zupp
What Would Buddha Do? Why Won't the Dalai Lama Pick a Fight?
Merlin
Chowkwanyun
The Strange and Tragic Case of Sherman Marlin Austin
Ben Tripp
Screw You Right Back: CIA FU!
Lee Ballinger
Grits Ain't Groceries
Mickey Z.
Not All Italians Love Columbus
Bruce
Jackson
On Charles Burnett's "Warming By the Devil's Fire"
William Benzon
The Door is Open: Scorsese's Blues, 2
Adam Engel
The Eyes of Lora Shelley
Walt Brasch
Facing a McBlimp Attack
Poets'
Basement
Mickey Z, Albert, Kearney
October 10, 2003
John Chuckman
Schwarzenegger
and the Lottery Society
Toni Solo
Trashing
Free Software
Chris
Floyd
Body
Blow: Bush Joins the Worldwide War on Women
October
9, 2003
Jennifer
Loewenstein
Bombing
Syria
Ramzi
Kysia
Seeing
the Iraqi People
Fran Shor
Groping the Body Politic
Mark Hand
President Schwarzenegger?
Alexander
Cockburn
Welcome
to Arnold, King for a Day
Website of the Day
The Awful Truth about Wesley Clark
October
8, 2003
David
Lindorff
Schwarzenegger
and the Failure of the Centrist Dems
Ramzy
Baroud
Israel's
WMDs and the West's Double Standard
John Ross
Mexico
Tilts South
Mokhiber
/ Weissman
Repub Guru Compares Taxes to the Holocaust
James
Bovard
The
Reagan Roadmap for Antiterrorism Disaster
Michael
Neumann
One
State or Two?
A False Dilemma
October
7, 2003
Uri Avnery
Slow-Motion
Ethnic Cleansing
Stan Goff
Lost in the Translation at Camp Delta
Ron Jacobs
Yom Kippurs, Past and Present
David
Lindorff
Coronado in Iraq
Rep. John Conyers, Jr.
Outing a CIA Operative? Why A Special Prosecutor is Required
Cynthia
McKinney
Who Are "We"?
Elaine Cassel
Shock and Awe in the Moussaoui Case
Walter
Lippman
Thoughts on the Cali Recall
Gary Leupp
Israel's
Attack on Syria: Who's on the Wrong Side of History, Now?
Website
of the Day
Cable News Gets in Touch With It's Inner Bigot
October
6, 2003
Robert
Fisk
US
Gave Israel Green Light for Raid on Syria
Forrest
Hylton
Upheaval
in Bolivia: Crisis and Opportunity
Benjamin Dangl
Divisions Deepen in Third Week of Bolivia's Gas War
Bridget
Gibson
Oh, Pioneers!: Bush's New Deal
Bob Fitrakis and Harvey
Wasserman
The Bush-Rove-Schwarzenegger Nazi Nexus
Nicole
Gamble
Rios Montt's Campaign Threatens Genocide Trials
JoAnn
Wypijewski
The
New Unity Partnership:
A Manifest Destiny for Labor
Website
of the Day
Guerrilla Funk
October
3 / 5, 2003
Tim Wise
The
Other Race Card: Rush and the Politics of White Resentment
Peter
Linebaugh
Rhymsters
and Revolutionaries: Joe Hill and the IWW
Gary Leupp
Occupation
as Rape-Marriage
Bruce
Jackson
Addio
Alle Armi
David Krieger
A Nuclear 9/11?
Ray McGovern
L'Affaire Wilsons: Wives are Now "Fair Game" in Bush's
War on Whistleblowers
Col. Dan Smith
Why Saddam Didn't Come Clean
Mickey
Z.
In Our Own Image: Teaching Iraq How to Deal with Protest
Roger Burbach
Bush Ideologues v. Big Oil in Iraq
John Chuckman
Wesley Clark is Not Cincinnatus
William S. Lind
Versailles on the Potomac
Glen T.
Martin
The Corruptions of Patriotism
Anat Yisraeli
Bereavement as Israeli Ethos
Wayne
Madsen
Can the Republicans Get Much Worse? Sure, They Can
M. Junaid Alam
The Racism Barrier
William
Benzon
Scorsese's Blues
Adam Engel
The Great American Writing Contest
Poets'
Basement
McNeill, Albert, Guthrie
October
2, 2003
Niranjan
Ramakrishnan
What's
So Great About Gandhi, Anyway?
Amy Goodman
/ Jeremy Scahill
The
Ashcroft-Rove Connection
Doug Giebel
Kiss and Smear: Novak and the Valerie Plame Affair
Hamid
Dabashi
The Moment of Myth: Edward Said (1935-2003)
Elaine Cassel
Chicago Condemns Patriot Act
Saul Landau
Who
Got Us Into This Mess?
Website of the Day
Last Day to Save Beit Arabiya!
October 1, 2003
Joanne
Mariner
Married
with Children: the Supremes and Gay Families
Robert
Fisk
Oil,
War and Panic
Ron Jacobs
Xenophobia
as State Policy
Elaine
Cassel
The
Lamo Case: Secret Subpoenas and the Patriot Act
Shyam
Oberoi
Shooting
a Tiger
Toni Solo
Plan Condor, the Sequel?
Sean Donahue
Wesley
Clark and the "No Fly" List
Website of the Day
Downloader Legal Defense Fund
September
30, 2003
After
Dark
Arnold's
1977 Photo Shoot
Dave Lindorff
The
Poll of the Shirt: Bush Isn't Wearing Well
Tom Crumpacker
The
Cuba Fixation: Shaking Down American Travelers
Robert
Fisk
A
Lesson in Obfuscation
Charles
Sullivan
A
Message to Conservatives
Suren Pillay
Edward Said: a South African Perspective
Naeem
Mohaiemen
Said at Oberlin: Hysteria in the Face of Truth
Amy Goodman
/ Jeremy Scahill
Does
a Felon Rove the White House?
Website
of the Day
The Edward Said Page
September 29, 2003
Robert
Fisk
The
Myths of Western Intelligence Agencies
Iain A. Boal
Turn It Up: Pardon Mzwakhe Mbuli!
Lee Sustar
Paul
Krugman: the Last Liberal?
Wayne Madsen
General Envy? Think Shinseki, Not Clark
Benjamin
Dangl
Bolivia's Gas War
Uri Avnery
The
Magnificent 27
Pledge
Drive of the Day
Antiwar.com
September
26 / 28, 2003
Alexander
Cockburn
Alan
Dershowitz, Plagiarist
David Price
Teaching Suspicions
Saul Landau
Before the Era of Insecurity
Ron Jacobs
The Chicago Conspiracy Trial and
the Patriot Act
Brian
Cloughley
The Strangeloves Win Again
Norman Solomon
Wesley and Me: a Real-Life Docudrama
Robert
Fisk
Bomb Shatters Media Illusions
M. Shahid Alam
A Muslim Sage Visits the USA
John Chuckman
American Psycho: Bush at the UN
Mark Schneider
International Direct Action
The Spanish Revolution to the Palestiniana Intifada
William
S. Lind
How $87 Billion Could Buy Some Real Security
Douglas Valentine
Gold Warriors: the Plundering of Asia
Chris
Floyd
Vanishing Act
Elaine Cassel
Play Cat and Moussaoui
Richard
Manning
A Conservatism that Once Conserved
George Naggiar
The Beautiful Mind of Edward Said
Omar Barghouti
Edward Said: a Corporeal Dream Not Yet Realized
Lenni Brenner
Palestine's Loss is America's Loss
Mickey
Z.
Edward Said: a Well-Reasoned Voice
Tanweer Akram
The Legacy of Edward Said
Adam Engel
War in the Smoking Room
Poets' Basement
Katz, Ford, Albert & Guthrie
Website
of the Weekend
Who the Hell is Stew Albert?
September
25, 2003
Edward
Said
Dignity,
Solidarity and the Penal Colony
Robert
Fisk
Fanning
the Flames of Hatred
Sarah
Ferguson
Wolfowitz at the New School
David
Krieger
The
Second Nuclear Age
Bill Glahn
RIAA Doublespeak
Al Krebs
ADM and the New York Times: Covering Up Corporate Crime
Michael
S. Ladah
The Obvious Solution: Give Iraq Back to the Arabs
Fran Shor
Arnold and Wesley
Mustafa
Barghouthi
Edward Said: a Monument to Justice and Human Rights
Alexander Cockburn
Edward Said: a Mighty and Passionate
Heart
Website
of the Day
Edward Said: a Lecture on the Tragedy of Palestine
The Great Alejandro Escavedo Needs Your Help!
September 24, 2003
Stan Goff
Generational
Casualties: the Toxic Legacy of the Iraq War
William
Blum
Grand Illusions About Wesley Clark
David
Vest
Politics
for Bookies
Jon Brown
Stealing Home: The Real Looting is About to Begin
Robert Fisk
Occupation and Censorship
Latino
Military Families
Bring Our Children Home Now!
Neve Gordon
Sharon's
Preemptive Zeal
Website
of the Day
Bands Against Bush
September
23, 2003
Bernardo
Issel
Dancing
with the Diva: Arianna and Streisand
Gary Leupp
To
Kill a Cat: the Unfortunate Incident at the Baghdad Zoo
Gregory
Wilpert
An
Interview with Hugo Chavez on the CIA in Venezuela
Steven
Higgs
Going to Jail for the Cause--Part 2: Charity Ryerson, Young and
Radical
Stan Cox
The Cheney Tapes: Can You Handle the Truth?
Robert
Fisk
Another Bloody Day in the Death of Iraq
William S. Lind
Learning from Uncle Abe: Sacking the Incompetent
Elaine
Cassel
First They Come for the Lawyers, Then the Ministers
Yigal
Bronner
The
Truth About the Wall
Website
of the Day
The
Baghdad Death Count
September
20 / 22, 2003
Uri Avnery
The
Silliest Show in Town
Alexander
Cockburn
Lighten
Up, America!
Peter Linebaugh
On the Bicentennial of the Execution of Robert Emmet
Anne Brodsky
Return
to Afghanistan
Saul Landau
Guillermo and Me
Phan Nguyen
Mother Jones Smears Rachel Corrie
Gila Svirsky
Sharon, With Eyes Wide Open
Gary Leupp
On Apache Terrorism
Kurt Nimmo
Colin
Powell: Exploiting the Dead of Halabja
Brian
Cloughley
Colin Powell's Shame
Carol Norris
The Moral Development of George W. Bush
Bill Glahn
The Real Story Behind RIAA Propaganda
Adam Engel
An Interview with Danny Scechter, the News Dissector
Dave Lindorff
Good Morning, Vietnam!
Mark Scaramella
Contracts and Politics in Iraq
John Ross
WTO
Collapses in Cancun: Autopsy of a Fiasco Foretold
Justin Podur
Uribe's Desperate Squeals
Toni Solo
The Colombia Three: an Interview with Caitriona Ruane
Steven Sherman
Workers and Globalization
David
Vest
Masked and Anonymous: Dylan's Elegy for a Lost America
Ron Jacobs
Politics of the Hip-Hop Pimps
Poets
Basement
Krieger, Guthrie and Albert
Website of the Weekend
Ted Honderich:
Terrorism for Humanity?
Hot Stories
Alexander Cockburn
Behold,
the Head of a Neo-Con!
Subcomandante Marcos
The
Death Train of the WTO
Norman Finkelstein
Hitchens
as Model Apostate
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Dardagan,
Slobodo and Williams
CounterPunch Exclusive:
20,000 Wounded Iraqi Civilians
Steve
J.B.
Prison Bitch
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Wendell
Berry
Small Destructions Add Up
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
Click Here
for More Stories.
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October
25, 2003
Legal Globalization
Why
US Courts Should be Able to Consider the Decisions of Foreign
Courts and International Law
By NOAH LEAVITT
What would happen if American lawyers began to
cite decisions from courts in other countries, and from international
courts? Would it enhance our judicial system--or bring chaos?
Even asking this question makes many
lawyers nervous. After all, many have long assumed that federal,
state and local law comprise the totality of our legal system.
However, I will argue that utilizing
law from jurisdictions outside our borders is not only possible,
but also may, in the near future, become a highly significant
legal development.
Indeed, this past weekend, October 11-12,
several hundred attorneys gathered in Atlanta to discuss this
very subject, at a conference organized by the ACLU. There, several
high ranking members of the judiciary--including the Chief Judge
of the U.S. Court of Appeals for the Ninth Circuit--spoke to
the group.
While they had very different views on
the subject, the judges tended to agree that, at a minimum, they
would like more education about international and foreign law.
That is because they seek to better understand these arguments
when attorneys raise them in their courts, as they increasingly
have been doing.
The Supreme Court
Is Looking Toward International and Foreign Law
The reality is that American attorneys
are already beginning to practice this type of legal advocacy--and
they are often doing so with the Supreme Court's and some lower
courts' blessing.
Immigration lawyers in Illinois are citing
decisions of the International Court of Justice and the International
Covenant on Civil and Political Rights. Criminal defense lawyers
in Michigan are citing decisions of the Constitutional Court
of South Africa and the Inter-American Commission on Human Rights.
And especially last Term, Supreme Court advocates referred to
foreign and international sources, and found the Court receptive.
Indeed, last Term the Court favorably
cited international and foreign law in three landmark decisions--and
not in dissents, but rather in majority opinions or concurrences.
(Previously, international law had generally appeared only in
death penalty dissents.)
The first was Atkins v. Virginia, which
prohibited the execution of the mentally retarded. Supporting
this conclusion, the Court pointed out that within the "world
community," the imposition of the death penalty for crimes
committed by mentally retarded offenders is overwhelmingly disapproved.
Interestingly, this argument originated in an amicus (friend
of the court) brief filed by the European Union.
The second was Grutter v. Bollinger,
the University of Michigan Law School case permitting the consideration
of race in affirmative action claims.
In their important concurrence, Justices
Ginsburg and Breyer implied that U.S. laws that agree with their
international equivalents are more likely to be upheld by the
Court than those that disagree. The two Justices stated that
"[t]he Court's observation that race-conscious programs
'must have a logical end point'... accords with the international
understanding of the office of affirmative action."
They noted that the International Convention
on the Elimination of All Forms of Racial Discrimination, ratified
by the United States in 1994, endorses "'special and concrete
measures to ensure the adequate development and protection of
certain racial groups or individuals belonging to them, for the
purpose of guaranteeing them the full and equal enjoyment of
human rights and fundamental freedoms.'"
In addition, in their sharp dissent in
Gratz v. Bollinger (the Michigan undergraduate admissions affirmative
action case), Justices Ginsburg and Souter drew on "contemporary
human rights documents" to distinguish policies of oppression
from measures designed to accelerate de facto equality.
The third was Lawrence v. Texas, which
struck down state anti-sodomy laws. In his sweeping majority
opinion, Justice Kennedy drew lessons from a similar case decided
by the European Court of Human Rights. He noted that the European
Court's ruling was authoritative in all countries of the Council
of Europe, and suggested that the U.S.'s lack of agreement on
this fundamental issue indicated that the Court should rethink
its analysis of the issue.
Justice Kennedy also favorably cited
an amicus brief submitted by former UN High Commissioner for
Human Rights Mary Robinson and others demonstrating that many
countries have taken action consistent with affirming the protected
right of homosexual adults to engage in intimate consensual contact.
In his sharp dissent, Justice Scalia--quoting
Justice Thomas--thundered, "this Court's Eighth Amendment
jurisprudence should not impose any foreign moods, fads or fashions
on Americans." But other Justices plainly felt very differently.
Critics assert that Atkins, Grutter,
and Lawrence are aberrations--not signs of a larger shift on
the Court. But this Term, lawyers are expected to file a growing
number of amicus briefs addressing international law. And it
is safe to predict that the Court will, at a minimum, carefully
consider these arguments, just as it repeatedly did last Term.
Why the Courts Are
Becoming More Open to International/Foreign Law Arguments
What are the sources of this legal sea-change?
One source of the change is the Justices'
personal experience. Some travel widely during their summer breaks,
meet their colleagues from other nations, and learn a great deal
about foreign law. Some also feel part of a larger global legal
order. Justices Kennedy, Ginsburg, O'Connor, and Stevens have
all spoken or written about the influence of foreign lawyers
and laws on their own legal development.
A second source of the change is the
conservative trajectory of courts since 9/11. In light of this
trend, lawyers such as those who attended last weekend's Atlanta
conference are trying new approaches, including using human rights
law in their briefs.
The cases in which these new approaches
have been tried range over a variety of legal areas: housing,
welfare, immigration, the death penalty, detentions, women's
issues, gay issues, and children's issues. And the legal strategies
themselves are diverse.
Here are just a few: Some attorneys in
discrimination cases are citing the International Convention
on the Elimination of All Forms of Racial Discrimination, which
allows a party to show disparate impact without having to prove
intent, and thus goes further to remedy discrimination than U.S.
constitutional law does. Other attorneys have resorted to calling
UN Special Rapporteurs to investigate Midwestern prison conditions
for violations of international standards.
A third source of the change is the increasing
use by plaintiffs of a federal statute called the Alien Tort
Claims Act (ATCA). The Act allows foreigners to bring complaints
of violations of the "laws of nations" to U.S. courts
for adjudication--as columns for this site by Anthony Sebok and
by Joanne Mariner have explained in detail.
The ATCA's use of the phrase "law
of nations" refers to international and foreign standards
of inhumane behavior, such as those prohibiting torture and forced
labor. To figure out exactly what the law of nations is, U.S.
courts must thus consult the enabling statutes and decisions
of human rights tribunals, as well as international human rights
covenants and declarations.
The Justice Department is currently attempting
to roll back history and precedent by challenging this type of
use of the ATCA--for example, in a recently-filed amicus brief
in Doe v. Unocal. (This case, currently pending before the Ninth
Circuit, addresses the treatment of villagers allegedly forced
by the Burmese military to construct giant gas pipelines through
the jungles.)
But the law remains on the books, and
has long been interpreted to allow just the kind of suits that
have recently been brought pursuant to it.
A New Approach: Human
Rights Are Not Only for Aliens, But for Citizens Too
The irony of the ATCA, however, is that
it allows non-citizens to draw on international law when U.S.
citizens cannot. But, of course, U.S. citizens' and residents'
human rights can be--and have been--violated too.
Still, Americans have typically thought
of human rights issues as conditions that arise abroad--say,
political repression in Liberia or women's living conditions
in Iran. Yet American issues are human rights issues too.
A conceptual shift is happening and it's
high time. The shift means that lawyers and others are finally
acknowledging that America is part of a world community, and
is responsible to its citizens to the same extent as other members
of the family of nations. This shift is not the first time lawyers
have looked beyond their borders: England and South Africa, for
example, have been drawing upon the international legal order
for years, and could teach the U.S. about how to make this process
function.
Thus, if children are hungry in Michigan,
or disproportionate numbers of racial and ethnic minorities are
being stopped on Arizona highways, or legal or illegal immigrants
in a factory in Los Angeles are unfairly treated, those are human
rights issues, just as surely as if those issues had occurred
abroad.
The Unpersuasive Arguments
Against Invoking International or Foreign Law
It is easy to imagine arguments against
this new approach. Critics may complain that judges will not
understand the foreign or international law in a brief; they
may not know where to find these foreign cases to verify them;
they may have access only to translations that blur legal nuance.
But these are solvable problems that have to do with improving
law libraries and online database access to foreign law, and
the quality of legal translation.
Meanwhile, critics may also complain
that the decisions themselves may be inapplicable to the American
system, for they may be based in different political and legal
frameworks. They may also simply be bad decisions that the U.S.
should not follow. But of course, there is no reason judges cannot
take into account these factors when they consider how much weight,
if any, to give to the decisions.
Finally, critics like Robert Bork and
Attorney General John Ashcroft claim that the movement towards
referring to international or foreign decision in American courts
will harm American law, opening the door to legal absurdities.
In essence, they ask, "Why should we let a court of dubious
authority in Chechnya or Ethiopia tell the most powerful country
in the world what to do?"
But the reality is that high courts in
many advanced nations and regions have spent decades considering
many of the same legal problems as America's courts. Thus, the
question is best reframed: Why should American judges not draw
inspiration from their foreign colleagues' wisdom and work?
Why Advocates Should
Press Forward, Despite the Hostile Climate
Besides these criticisms, the movement
I have described is likely to face other considerable obstacles.
The current political climate seems to shun anything from outside
the U.S.'s borders. The Bush Administration has shown only disdain
for most international agreements and for the need for international
cooperation. And the Administration seems uninterested in the
U.N. except insofar as the U.N. is willing to work as, in effect,
the Administration's subcontractor, devoting itself to carrying
out the Administration's own political agenda.
But despite these obstacles, members
of the new movement shouldn't lose hope. Rome wasn't built in
a day--and the law isn't either. For example, prior to the groundbreaking
ruling in Brown v. Board of Education, the NAACP Legal Defense
Fund slowly brought a long series of cases to lay the foundation
for their larger desegregation efforts.
Moreover, for more than fifty years before
Brown, African-Americans had been filing claims of instances
of discrimination. These hundreds of individual cases may have
created the legal and political climate, as well as created the
legal precedent, for larger desegregation cases like Brown.
Those who advocate referring to international
and foreign law in American cases may similarly have to wait.
But last Supreme Court Term suggests that history will likely
vindicate their efforts.
Noah Leavitt,
an attorney, is the Advocacy Director for the Jewish
Council on Urban Affairs. The views expressed here are his
alone. This article originally appeared on Findlaw's Writ.
Leavitt can be contacted at nsleavitt@hotmail.com.
Weekend
Edition Features for Oct. 18 / 19, 2003
Robert
Pollin
Clintonomics:
the Hollow Boom
Gary Leupp
Israel, Syria and Stage Four in the Terror War
Saul Landau
Day of the Gropenfuhrer
Bruce Anderson
The California Recall
John Gershman
Bush in Asia: What a Difference a Decade Makes
Nelson P. Valdes
Bush, Electoral Politics and Cuba's "Illicit Sex Trade"
Kurt Nimmo
Shock Therapy and the Israeli Scenario
Tom Gorman
Al Franken and Al-Shifa
Brian
Cloughley
Public Propaganda and the Iraq War
Joanne Mariner
A New Way to Kill Tigers
Denise
Low
The Cancer of Sprawl
Mickey Z.
The Reverend of Doom
John Chuckman
US Missiles for Israeli Nukes?
George Naggiar
A Veto of Public Diplomacy
Alison
Weir
Death Threats in Berkeley
Benjamin Dangl
Bolivian Govt. Falling Apart
Ron Jacobs
The Politics of Bob Dylan
Fidel Castro
A Review of Garcia Marquez's Memoir
Adam Engel
I Hope My Corpse Gives You the Plague
Poets' Basement
Jones, Albert, Guthrie and Greeder
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