Harold Koh Discussion with John Bellinger at ASIL Event

Posted: 19 Feb 2010 05:16 AM PST

by Kenneth Anderson

Julian mentioned, in his first post on Sarah Cleveland’s UVA talk below, that Harold Koh, legal adviser to State, held an informal public discussion with his predecessor from the Bush administration, John Bellinger. This was an ASIL event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins, also of Arnold & Porter. CSPAN covered it, and the video is now available: The Obama Administration and International Law, February 17, 2010. (If I can find a youtube version from ASIL, I’ll see if I can embed it.)

I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event. My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments - and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public. While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance here at OJ that was very well received. Harold Koh has also been doing some out of the box engagements, and this kind of unscripted, informal discussion is an outstanding example of that.

(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on. So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully - but less informatively - phrased. So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion. To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)

The conversation ranged across a wide variety of issues, including something that Julian flagged below with respect to Sarah Cleveland’s UVA speech - the pace of treaty exchanges. John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (90!) than at any point in American history. On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed. But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.

Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens. The exchange takes place at approximately minutes 58-65 in the tape. The context is a question from someone - I believe, but couldn’t quite hear the feed, from an NGO - unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court. I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful. The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.

Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations. He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views. He went on to say that he would leave the government if he concluded that targeted killing was illegal. He did not say that he had concluded that it was legal, but instead that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration. Having said that, however, he added that he was still there.

This is a good place at which to caution against over-interpreting an impromptu discussion. I would like to conclude that the upshot here is that not having left is not a reason to conclude that Dean Koh has concluded that the practice is affirmatively legal. All he said was that if he were to conclude that the practice was illegal (and presumably that conclusion not accepted), he would leave office. It would appear either that he has concluded the practice is legal or that he has not drawn a conclusion as yet. (And of course, targeted killing is too broad a description; under what circumstances and what exactly is meant?) But I do not think it is fair in this setting to draw firm conclusions.

On the other hand, I do think the question important enough that the legal adviser does need to draw some formal conclusions and put them out there, preferably in testimony. What was said here suggests that the legal adviser to State might still draw the conclusion that targeted killing is unlawful. If I were the administration, ever more committed by the President, the Vice-President, and down the chain of policy and command, to targeted killing especially via drone aircraft - embracing it as a strategy and publicly endorsing it - I’d be concerned that my chief international lawyer had so far reserved judgment on the question. I have written in various places that I think Republicans in Congress need to press the State Department for its formal views on this - actually, I think the people who have the most reason to be concerned should be the administration itself.

That would include, I should think, particularly officials and officers in the CIA and civilian intelligence agencies responsible for parts of the drone program outside of the uniformed military - while it would be unfair to say what Dean Koh’s view of their actions would be in the future, surely a senior CIA official would have some concern that after a year, the DOS had not affirmatively embraced in public the lawfulness of the practice or produced a public legal rationale for its lawfulness. I am no fan of the ACLU on these matters, and I agree with the US government, under both Obama and Bush, that the UN special rapporteur exceeds his mandate to call upon the US government to respond - but as to the substance, I think the ACLU and Philip Alston are both quite right in saying that, yes, the US government needs to state the basis on which it thinks its several varieties of targeted killing programs (those in AfPak, those elsewhere, for example) are lawful. I think it needs to say so and assert it as formal opinio juris of the United States. The failure to do so and the increasingly conspicuous absence of the administration’s most senior, and most widely admired, lawyer on public international law and human rights to defend the practice cannot be a good thing. At what point does the State Department legal department have to express a view, stand with its clients or, as Dean Koh says, stand down?

Again, while it is wrong to over-interpret here, were I a senior CIA or NSC official with operational responsibilities for Predator attacks, I would wonder what exactly to make of the failure of the State Department’s lawyers to step up and defend what I’m doing - and instead to raise the possibility that no conclusion had actually been reached. Would I think my personal legal risks had just been increased - risks of investigation or prosecution five years from now, ten years from now, in some European court? Or by a future Holderesque Justice Department?

Far fetched? Maybe. But I think I would be saying to myself, hmm … my colleagues and I are out there killing people, and causing some number of collateral deaths, and the President says approvingly in speech after speech, we’re taking the fight to the enemy wherever they are. And the Vice-President, well, it’s as though he’s beaming with pride over his flock of Predator gooselings … meanwhile, however, the administration’s lawyer whose public approval, in that world of combined law-diplomacy-global elite opinion matters most to the personal legal protection of the officials tasked with carrying out the President’s policies … does not seem to have drawn a conclusion. At least not one he’s willing to share with the rest of us, and with Baltasar Garzon or Luis Moreno Ocampo. So my own conclusion is - you can’t extract a firm conclusion as to Dean Koh’s views one way or the other. But there are compelling reasons why it shouldn’t - can’t - go on forever that the State Department expresses no view in public, and gets behind that view in public legal-diplomacy. If I were the general counsel to the CIA, DNI, DOD, the White House counsel, etc., I think I would have some concerns - and that would be so even if private assurances had been given.

But Dean Koh also made some references as to the legal basis for global counter terror operations generally - and referred to them in the context of the domestic authorization to use force from Congress, the AUMF, and then the international law of armed conflict. I have argued in various contexts, and will argue some more, that as a matter of international law, targeted killing - to the extent and in the places and against the targets that the administration has undertaken, has committed itself to undertaking, and is likely to be forced by circumstance to contemplate over two terms in office, nearly a decade - cannot really be justified as armed conflict with a non-state actor on a global basis, governed by the laws of war alone. I don’t think that’s true as a matter of jus ad bellum or jus in bello.

I will be arguing (in a new paper soon) that unless the Obama administration plans to backtrack and adopt the Bush administration’s “global” war on terror as a basis for asserting the laws of armed conflict however and wherever it uses force - all of which I consider to be several bridges too far and the one area where I agree with Mary Ellen O’Connell - it’s not really talking about armed conflict. Not in a legal sense. Not seven years from now, when it sends a miniaturized Predator missile to take out three terrorists who are in some compound in, say, a remote part of, oh, Nigeria in which the central government, caught in civil war, no longer has sway - part of a group that swears allegiance to jihad but has no command or control link to Osama bin Laden. The legal doctrine the US wants, in that case, is not armed conflict, but the more general category of international law of self-defense. I am somewhat concerned that the Legal Adviser made no reference to legal rationales for the use of force beyond the narrowest armed conflict law - law which might serve the administration for the next couple of years, but seems more and more like a purely formal, purely notional reference to armed conflict or, for that matter, Al Qaeda or 9-11, as the years roll by. It seems to me that the law at issue here is the more general category of international law of self-defense, and that the US government does itself no good and much harm in the long term by not asserting the legal category that most accurately describes the uses of force that, over the next decade, it contemplates actually undertaking.

That’s my own legal view, of course, and it will be important to watch as the State Department expresses its positions on these and other issues. The discussion covered many other aspects of the Obama administration’s approach to international law, although I have focused closely on this one aspect. It was an outstanding event, and my thanks and congratulations to the organizers and participants - I wish I could have been there. I hope many people will take time to view the video.

(I have over at my almost-entirely dormant home blog a much more aggressive - too incendiary for Opinio Juris, I concluded - discussion of this, posted up prior to the ASIL discussion. Instapundit picked it up, so it has circulated pretty widely, so I thought I should reference it here. In large part, though, it is a highly critical comparison of the administration’s “on offense” and “on defense” approaches to counterterrorism.)

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yesterday there was a occasion where I can hear about how international lawyers got or fit into the narrow door and became golden. One of the panel was Prof. Waters, who stressed out the importance of mentor. Her mentor was Harold Koh. He was running int'l national human rights clinic, inter alia, ATS suit. she was excellent in civil procedure. He strongly suggested her to join the clinic esp. dealing with jurisdiction issue. She seems to enjoy very much working with him.

(if you do not take international law course, do not worry about that. actually I did not take international law course. Oh I shouldn't have said that. )

South Korea's Kim Takes Big Lead In Figure Skating

by THE ASSOCIATED PRESS

EnlargeAmy Sancetta/AP

South Korea's Kim Yu-na performs her short program during the women's figure skating competition at the Vancouver 2010 Olympics.

text sizeAAA

February 24, 2010

Like a true Bond Girl, Kim Yu-na knocked off her rivals.

Nobody did it better.

The biggest favorite to win the Olympic title since Katarina Witt in 1988, Kim was cool under pressure with a playfully sexy and sophisticated number that delighted fans and judges alike Tuesday night. Her score of 78.5 points not only shattered her own record, it put her almost five points ahead of longtime rival — and chief threat — Japan's Mao Asada.

With two triple axels planned, Asada can make up the difference in Thursday night's free skate. But it sets up the best showdown in figure skating since the "Battle of Brians" — so appropriate considering Brian Orser is Kim's coach.

Not surprising, either, considering the 19-year-olds have been trading titles since their junior days. Kim and Asada have combined to win the last two world championships and five Grand Prix final titles.

Heard On 'Morning Edition'

February 24, 2010

NPR's Tom Goldman Reports From Vancouver

[3 min 56 sec]

"It was perfect that she skated right after Mao," Orser said, "because she's a competitor. She's very fierce."

Canada's Joannie Rochette, skating two days after the sudden death of her mother, gave the most moving performance of the night and was third.

"I watched her when she was getting ready to skate and she looked like she was struggling emotionally," Skate Canada CEO William Thompson said. "I think her mother's jumping up and down in the sky. That was the dream performance."

Fighting tears as she took her starting pose, Rochette composed herself and let her training mask her grief. But when her music ended, Rochette gave a sharp exhale and doubled over, no longer able to hold back the tears. She tried to smile as she waved at the standing crowd, but couldn't stop the tears, and buried her head in longtime coach Manon Perron's shoulder when she left the ice.

EnlargeMark Baker/AP

Canada's Joannie Rochette reacts after performing her short program during the women's figure skating competition. Rochette's mother died suddenly just two days before.

She cried through her marks and was later helped backstage by two Skate Canada officials.

Miki Ando, the 2007 world champion, is fourth, followed by the two young Americans, Rachael Flatt and Mirai Nagasu — who fared far better than she expected after getting a bloody nose midway through her program.

"Halfway through the program, I felt it running down my nose and just said, 'Don't stop, keep going,' " Nagasu said. "I skated the best I can."

So did Kim.

She arrived in Vancouver carrying the greatest expectations of any single athlete. The reigning world champion is a rock star in her native South Korea, dubbed "Queen Yu-na" and so wildly popular she can't leave her parents' house without bodyguards. Though South Korea has piled up plenty of medals — 10 here in Vancouver, as of Tuesday night — the country has yet to win anything in any winter sport besides speedskating and short track.

Gold is not just expected of Kim, it's practically demanded. But if Kim was feeling the heat, she didn't let it show.

"I was a little worried but, no, there was no pressure," Kim said. "I have been waiting for this for a really long time."

Skating right after Asada, Kim showed no reaction when she heard her rival's marks. When the rowdy cheers finally faded, she took her spot at the end of the rink, slowly unfurled one arm, cocked her index finger like a gun and turned her head to give the judges a sly, seductive smile.

Kim doesn't have Asada's triple axel — few women in the world do — but her jumps are no less impressive. She goes into them full speed and her triple lutz-triple toe combination was done with perfect timing and smoothness, like a rock skipping across the water. Her spins are done with such flexibility they'd make Gumby green with envy.

But what makes her so captivating is her presentation. Anyone who complains that figure skating has lost its sizzle hasn't seen Kim skate. She played the Bond Girl to the hilt, rubbing her hand up one thigh while she was in front of the judges, fixing them with a flirtatious look.

When she saw her marks — 2.22 points better than her previous record — she gave an easy smile as if she expected it all along.

Asada's program was in sharp contrast to Kim's, playful and light. The highlight was, of course, that triple axel, which she did in combination with a double toe. The jump is so difficult few women even try it, yet Asada rips it off like it's a single. She's not just a jumping bean, though.

She was so in tune with her "Masquerade Waltz" that, during her footwork sequence, she did a little hop and an illusion — swooping her head and torso down while her leg is kicking up — right as the music lifted. She beamed during her spiral sequence, which seemed to go on forever.

Asada clasped her hands together and hopped up and down when she finished, giving the cheering crowd a slight bow as she left the ice. She looked stunned when her marks were announced, turning to coach Tatiana Tarasova as if to say, "Is that good?"

The "Battle of the Brians" is the defining memory of the Calgary Olympics, an epic duel between Orser and American Brian Boitano. The two were also longtime rivals, trading titles so many times they wore a path between the top two spots on the podium. Boitano won with what, at that time, was the finest Olympic performance in the men's event.

At Least One British Prime Minister Faces ICC Charges…

Posted: 22 Feb 2010 10:29 PM PST

by Kevin Jon Heller

Sure, it’s in Roman Polanski’s new film, The Ghost Writer. But it’s still cool — especially when the Prime Minister, played by an excellent Pierce Brosnan, is charged with war crimes and crimes against humanity for aiding and abetting torture by the United States!

I have to admit, I never thought I’d live to see Article 25(3)(c) of the Rome Statute — the aiding and abetting provision — read word-for-word in a film. And that’s not all: not only does the film properly invokes Article 7 and Article 8 as covering crimes against humanity and war crimes respecitvely, the scenario it depicts could actually result in an ICC prosecution.

That said, the film does make two errors — one blatant, one subtle. The blatant error is that it refers to the “Special Prosecutor” of the ICC. The subtle error (minor spoiler alert!) is that it implies that an unwilling witness could be required to testify, when the ICC lacks subpoena power.

On the bright side, the “Special Prosecutor” in the film is a woman. We all know that would be an improvement over the current one…

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want to watch the movie

What the IAEA Knew: The U.N. agency charged with stopping nuclear proliferation enabled it.

eye on the UN For Immediate Release:February 22, 2010

This article, by Anne Bayefsky, originally appeared in Forbes.com.

The most important thing gleaned from the report by the U.N.'s International Atomic Energy Agency (IAEA) circulated on Feb. 18, which states that Iran may indeed be bent on developing a nuclear bomb, is not new information about Iran. It is that for years the United Nations apparatus lied about what they knew and actively stood in the way of efforts to prevent the world's most dangerous regime from acquiring the world's most dangerous weapon.

The "confidential" report leaked to every news agency on the planet, is quoted as stating that on the basis of "extensive" and "credible" information the IAEA now has "concerns about the possible existence in Iran of ... current undisclosed activities related to the development of a nuclear payload for a missile," and "concerns about possible military dimensions to Iran's nuclear program."

While Obama administration officials have attempted to spin the first report of IAEA chief Yukiya Amano, who took over last December, as a U.N. achievement, the implications of the evident U.N. deceit cannot be overstated. After all, the organization has a choke hold on global imaginations. In 2005 the Nobel Peace Prize was awarded to the IAEA and its then Director General Mohammed ElBaradei "for their efforts to prevent nuclear energy from being used for military purposes." It is now clear that this occurred at the very same time that ElBaradei was engaged in what may well prove to be the most lethal cover-up in human history.

For almost a decade, the IAEA and its director general stalled for time on behalf of Iran, with reports feigning ignorance of Iranian designs while leaving an escape hatch should the IAEA's disguise as a non-proliferation agency be blown. In February 2006 ElBaradei reported: "Although the Agency has not seen any diversion of nuclear material to nuclear weapons or other nuclear explosive devices, the Agency is not at this point in time in a position to conclude that there are no undeclared nuclear materials or activities in Iran. The process of drawing such a conclusion ... is a time consuming process."

In August 2006 ElBaradei reported: "the Agency remains unable to make further progress in its efforts to verify the correctness and completeness of Iran's declarations with a view to confirming the peaceful nature of Iran's nuclear programme." In January 2007, in the midst of growing calls for sanctions, ElBaradei suggested a "time-out." In July 2007 ElBaradei concocted a deliberately nebulous deal between the IAEA and Iran "on the modality for resolving the remaining outstanding issues." In September 2007, with stiffer sanctions on the horizon, ElBaradei again called for a "time-out." In January 2008 the IAEA reported: "ElBaradei has repeatedly noted that ... the IAEA has not seen any diversion of material to nuclear weapons or other nuclear explosive devices."p>

And on and on the reports and the carefully timed interviews went. The organization charged with stopping nuclear proliferation enabled it. This latest "revelation" should, therefore, be a shot heard round the world. Or at the very least, in the halls of Congress, where every year at least 5 billion American taxpayer dollars are directed to the United Nations in cash or in kind.

Last week's report did not see the light of day because the U.N. has turned over a significant new leaf. Rather, this is a desperate attempt by Amano to save the organization's hide. It is an indication that Iran's breakout as a nuclear power is so close at hand that the "watchdog" agency can no longer keep a lid on it.

The development does cast a new light, however, on ElBaradei's assessment of President Obama's Nobel Peace Prize. Over the course of his presidency, Obama has repeatedly taken the heat off Iran: muting criticism over the stolen elections, minimizing response to human rights violations, sidelining the plight of Iran's American hostages and treading water on sanctions for over a year. One particularly treacherous strategy has been to equate the urgency of nuclear disarmament--including by the United States--with nuclear non-proliferation. This inevitably delays progress on the latter. In the name of some perverse concept of fairness, the peril of a nuclear-armed United States and like-minded democracies is set off against the craving of non-democratic developing states to be equally armed. ElBaradei agreed with this strategy--as did the Nobel Committee.

Fellow honoree ElBaradei was therefore "absolutely delighted" at Obama's award. Perceiving the Obama-ElBaradei approach to have been applauded once again, he told reporters: "I could not have thought of any other person today that is more deserving of the Nobel Peace Prize than Barack Obama ... I think the [Nobel] committee understood fully, as they have done in 2005, that we really need to address the number one security threat we face in the world--which is to get rid of these inhumane weapons. And Obama has ... managed to put nuclear disarmament on the top of the international agenda ... That is something I think the committee, by giving him the prize today, has applauded and said 'you are doing the right thing; keep doing what you are doing.' Exactly the same message that they have sent to the IAEA in 2005 ... and myself."

Two Nobel Peace Prizes later, Iran is much closer to acquiring nuclear weapons and ElBaradei's days as U.N. proliferator-in-chief may not quite be over. On Friday, Feb. 19, he returned to his native Egypt and declared his interest in replacing President Hosni Mubarak in next year's elections. If he were to succeed, he will undoubtedly follow an Iranian bomb with a dash to achieve an Egyptian one, with the tried-and-true U.N. formula of non-discrimination and peace.

Yoo And Bybee, Lawyers Behind 'Torture Memos,' Will Not Face Disbarment, Criminal Punishment

http://www.npr.org/blogs/thetwo-way/2010/02/yoo_and_bybee_lawyers_behind_t.html
5:45 pm

February 19, 2010

Yoo." class="img462">

John Yoo, formerly of the Department of Justice's Office of Legal Counsel. (Melissa Golden / Getty Images)

By David Gura

Today, the Department of Justice released the long-awaited results of its investigation into Steven Bradbury, Jay Bybee and John Yoo, the men who wrote memos authorizing harsh interrogations for high-profile terrorism detainees, NPR justice correspondent Ari Shapiro reports.

According to the cover letter accompanying the report, last year, the Department of Justice's investigation determined Bybee and Yoo violated professional legal ethics when they worked in the Department's Office of Legal Counsel, crafting the standards for interrogating high-value terrorism detainees.

But David Margolis, the career official in charge of overseeing the Office of Professional Responsibility, overruled that finding, Shapiro says. Now the report concludes the two men "exercised poor judgment." As a result, Bybee and Yoo do not face criminal charges or disbarment.

The final report is hundreds of pages long, filled with extensive emails between the Department of Justice, the White House, and the Central Intelligence Agency.

"If the torture memos were the movie, this report is the making of," a congressional staffer told Shapiro.

Update at 5:45 p.m. ET: In a statement accompanying the House Committee on the Judiciary's release of the report, Conyers said that the Department of Justice "deserves particular praise for transparency having released the draft version of its report and related materials that led to its final conclusions." He remained critical of Bybee, Bradbury, Yoo and others involved in drafting the memos, calling them "a blight on our national honor": "Today's report makes plain that those memos were legally flawed and fundamentally unsound. Even worse, it reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House."

Update at 5:39 p.m. ET: Rep. John Conyers Jr. (D-MI), the chairman of the House Committee on the Judiciary, released the report and earlier drafts "in connection with the committee's oversight responsibilities and in anticipation of a public hearing on the issues raised." They're available here.

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for me, as a Korean, the "news" is, first, releasing the draft version of its report and related materials that led to the final conclusion , second, legal ethics kicked in leaving door open to disbarment and criminal conviction. What an exemplary of rule of law ~

John Yoo was on "daily show", what struck me was that he did not meet with Mr.Bush. I assumed then-president Mr. Bush and John Yoo went on a first name basis.

Jon Stewart was straight. the show seems to have no script. John Yoo was underwhelmingly nimble.
Jon asked "wait wait wait ,, so you think, if thousands of people were killed, torture is allowed?"


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David Margolis’s Whitewashing

Posted: 20 Feb 2010 02:15 PM PST

by Kevin Jon Heller

I don’t have much time, but it’s important to note that although David Margolis may be a career attorney, he has made a career out of preventing government officials from being held accountable for their misconduct. From Scott Horton:

But “Yoda” Margolis also knows the “dark side” of political intrigue. He was long the man to whom political appointees could turn for protection and guidance when the going got rough, in both Democratic and Republican administrations. For instance, Bloomberg reported that both Kyle Sampson and Monica Goodling turned instinctively to Margolis for protection and support when the U.S. attorney’s scandal erupted.

What this means in practice can be seen in dozens of cases involving seriously unethical conduct by political appointees. Margolis has a one-size-fits-all solution for these cases: sweep them under the carpet.

In “Prosecutorial Ethics Lite,” I reviewed what Margolis did when confronted with a case in which a U.S. attorney used all the powers she could assemble to destroy an insurance executive who had commenced a law suit against her husband. Ethics rules clearly required her recusal. But in the face of a compelling mass of evidence, Margolis concluded that everything was just fine. He allowed the U.S. attorney to pass nominal control of the matter to the head of her criminal division. The abuse of office pressed forward, with Margolis’s blessing.

Justice Department insiders also note that Margolis single-handedly blocked efforts to secure a meaningful review of the prosecution of former Alabama Governor Don E. Siegelman, after more than 90 attorneys general from around the country advised the Justice Department of a series of gross irregularities. Instead, with Margolis’s apparent knowledge, the Department fired a member of the prosecution team who had blown the whistle on some of the misconduct. (“What the Justice Department is Hiding.”)

Jeff Kaye collects a number of other occasions on which Margolis’s machinations have made their way into the media.

In a July 6, 2008, Los Angeles Times story, Margolis is cited as leading an effort to avoid publication of the Department’s internal ethics reviews. Margolis told the Times that his opposition to publication of OPR reports was driven by concerns about “unnecessarily or gratuitously… publicly humiliating our line attorneys as individuals.” But it may well be that Margolis’s desire to keep his own role in those cases secret was a more pressing concern.

There is little mistaking Margolis’s brief in all these matters. None of his critics fault Margolis’s own conduct as a lawyer. But they express concern that he is too quick to let political appointees off the hook and note that this has severely damaged the culture of the Justice Department. Ironically, Margolis is clearly driven by a desire to protect the Department’s reputation.

Margolis’s decision to override the OPR’s lead investigator is just more of the same.

P.S. For a nice critique of Margolis’s conclusion that Yoo did not act recklessly, see Brian Tamanaha’s post here.

The End of the War Over the Torture Memos?

Posted: 20 Feb 2010 02:12 AM PST

by Julian Ku

After five years, the U.S. Department of Justice has finally released its report of its internal investigation into the legal advice provided by its attorneys that became known as the “Torture Memos.” The lead investigator was the Office of Professional Responsibility (OPR) which issued a report recommending referring John Yoo and Jay Bybee to their state bars for disciplinary proceedings. But this recommendation (which was not officially made until December 2008), has been soundly and completely rejected by David Margolis, the Associate Deputy Attorney General empowered by the DOJ to decide whether to accept the OPR recommendations. All of the relevant documents have been posted on the House Judiciary Committee website. I’ve only scanned them, but here is the bottom line: Yoo and Bybee’s work on the torture memos is called “poor judgment” and “flawed” but there is no evidence that this advice reflected any professional misconduct.

The decision memo by Margolis (who is a career attorney, not a political appointee) is tough on John Yoo’s work, but it is even tougher (and at times contemptuous) of the work done by the OPR. The OPR report is rejected in every single way possible. (Indeed, I wondered at times whether the OPR attorneys are going to be investigated for professional misconduct themselves). (- ^^)

Does this mean the end of the war over the “torture memos”? Uh, hardly. Congress is going to go over these memos again. But it is the beginning of the end. The chance of a criminal prosecution of the Bush attorneys in the U.S. is now, effectively, zero. (I argued this point in this essay here and I am glad that I will be proven right) Civil suits are going to face some serious problems, if the analysis in these documents is accepted. Even international prosecutions are going to have to take seriously the fairminded analysis in the Margolis memo, which drew tough but persuasive distinctions between good faith legal analysis and professional misconduct. It would be odd for something that wouldn’t even qualify as an ethics violation in the U.S. to be the basis for criminal liability under a theory of universal jurisdiction. But then again, I’m not Judge Garzon

Booking a Flight the Frugal Way

http://frugaltraveler.blogs.nytimes.com/2010/02/16/click-it-and-ticket-booking-a-flight-the-frugal-way/?em

February 16, 2010, 11:00 pm

By MATT GROSS

It used to be so simple. You wanted to go to Paris, so you called a travel agency, gave them your dates and budget, and with any luck, you soon had in your hands a real paper ticket with a real dollar value. Even in the early days of the Internet, it was easier. You went to one of the few booking sites — Travelocity or Expedia, most likely — searched for your route, paid with a credit card and that was it. Maybe you even got a paper ticket in the mail. Those were the days!

Today, however, booking a flight is a total mess. Travelocity and Expedia have been joined by Bing and Orbitz and Dohop and Vayama and CheapTickets and CheapOair and Kayak and SideStep and Mobissimo and and and … I could go on and list every single Web site out there, but I won’t. There are just too many. Instead, I’ll lead you through the steps I make when I’m booking a flight myself.

I’ve covered this territory a bit before — here and here — but today I’ll try to go into more detail. For this experiment, let’s imagine a simple domestic trip: a weekend of snowboarding in Jackson Hole in Wyoming at the beginning of March.

My first stop is, as it’s been for years now, Kayak.com. It’s the simplest airfare search engine — minimal graphics, no discount vacation deals to confuse me, and it searches almost every other site out there — and also the most flexible. I can not only choose a window for my departure and arrival times but also decide where I want (or don’t want) to spend a layover, or which frequent-flier alliance to stick with.

Kayak gives me two decent-looking options: $231 on American Airlines (Newark to Jackson via Chicago) and $241 for Delta (via Atlanta); taxes and fees included in both figures. I’m lucky here — I have gold status on American, so I can avoid the checked-baggage fees for my snowboard.

Of course, I don’t stop there. Next, I’ll check ITASoftware.com, a somewhat complicated site that makes it feel as if you’re a travel agent tapping into unusual, semisecret routes. Maybe there’s a faster way to Wyoming, perhaps through Minneapolis? Not this time. For the Jackson Hole trip, ITA finds the same American Airlines itinerary, pricing it at $230 instead of $231. Frankly, it’s a pretty normal trip, so there are no surprises. And anyway, ITA doesn’t let you book tickets, instead directing you to other sites or travel agents.

So, I check out another site: cFares.com, which has a twist. For a $50 annual membership, you’ll get small rebates if you book through them. Each rebate may be only $8 or $20, but if you fly several times a year, that can add up quickly. And last spring, cFares found me a flight from New York to Paris for $543.17, or about $200 less than any other search engine found.

For my theoretical ski trip, cFares knocks that $241 Delta flight down to $229 via the rebate (clicking the link sends you to Orbitz to book), but it doesn’t bring up the American flight at all.

And so, finally, if I were going to book this trip, I’d go straight to AA.com, login with my frequent-flier account and buy my ticket right there. Except … I’ve waited too long! In the couple of hours between when I first started searching and when I eventually decided to book, the fares have gone way up — the flight is now $298. Still, because I have status on American, it’s the better deal.

bing.com

Or is it? Will the price go down? For that, I check Farecast.com (which has been absorbed into Bing) and Yapta.com, which track airfares and can predict — based on historical data and knowledge of the airlines’ pricing systems — if a price is going to go up or down in the near future. In this case, Bing/Farecast says buy, so I guess I will, even though I’m a little skeptical of their methods. In light of volatile oil prices, pandemic panics and the generally unpredictable future of travel, I don’t know how much to trust these virtual prognosticators. At some point, I have to perform an important, very personal calculation: is it worth my time to keep searching — and to keep worrying that I’m missing out on a better deal? Or should I just go for it and accept that I’ve found a decent fare?

For an international flight, things are slightly more complicated. Let’s imagine I’m going to Bangkok in early April (as I very well might be). For this trip, my dates are a bit more open-ended, as is the amount of time I’m willing to take to get to Thailand. So, I’ll again start with Kayak, checking out its airfare matrix, a calendar-based grid that appears when I enter my origin, destination and the month I’m traveling.

Kayak.com

Each day of the calendar has a dollar figure showing the lowest possible fare with a departure for that date. Click on the day (April 1 in this case) and a long list appears, with fares ranging from “$950+” to “$1400+” and boxes that let me specify how long of a trip I want: 1-4 days, 5-9 days, 10-14 days or 15+ days. Ten to 14 sounds reasonable, a choice that lands me a one-stop flight (there’s no longer a nonstop, alas) with Cathay Pacific at “$1,165+.” That plus sign is important, because now I have to click “Check now” and find out what the fare will really be … Surprise! It really is $1,165.

If, however, I do the search again, specifying flexible dates, I come up with a bunch of $1,000 options on Air China. Which do I go for?

That’s when I start checking other sites. First is Vayama.com, a booking site that specializes in international flights and claims to have access to private deals unavailable elsewhere. And Vayama comes through pretty well, finding a $1,048 fare on Asiana (taxes and fees included) and, intriguingly, a $1,230 fare on a Oneworld Alliance airline. Which one? I won’t know until I book, but since American Airlines is a Oneworld member, my frequent-fliergold status might garner me an upgrade, or at least the chance to earn a bunch of miles and request a better seat.

Meanwhile, cFares finds that same $1,048 fare on Asiana (actually, it finds it on Vayama, and on CheapoAir.com) and offers a respectable $30 rebate. Not bad. Now I just need to decide: would I prefer to fly through Seoul (on Asiana) or Beijing (on Air China), or do I want to plump an extra $200 for several thousand frequent-flier miles on American?

Honestly, I don’t know. But I should probably make up my mind soon, before the airlines get wind of my plans.

SeatExpert.com The seat plan for an Air China
Boeing 747-400.

Still, however, there are a few more little things I do to game the system as much as possible. I try to fly on Tuesdays or Wednesdays, when fares tend to be a little lower (though not always) and fewer people mob the airports (though not always). I go to SeatExpert.com to find the best spot in the plane to park myself. (Sorry, SeatGuru.com!) And I try always to buy the ticket directly through the airline, partly to maximize frequent-flier miles, partly because the airlines sometimes have special deals that don’t show up on Kayak, but also so that if things go wrong at the airport (as I’ve heard happens on very rare occasions) the airline won’t be able to blame some third-party booker.

None of this, of course, is foolproof. Fares go up or down seemingly at random, routes change or evaporate or come into being according to no logic I can discern, and what I imagine would be an empty flight could turn out to be full of rowdy high-schoolers on a class trip. (They’re worse than babies, seriously.) But traveling well (and frugally) means being ready for the unexpected — even when it happens long before you ever get on the plane.

Korea’s Role in Global Development

Brookings Northeast Asia Commentary | Number 36

Kangho Park, Visiting Fellow, Wolfensohn Center for Development, Global Economy and Development, The Brookings Institution

The Brookings Institution

February 2010 —

As part of its efforts to become a “Global Korea,” the Republic of Korea is undertaking efforts to contribute responsibly to the international community. The Korean government has actively participated in the G-20 summits – working collectively with other national governments to find solutions to the global financial crisis. Participants in the September 2009 Pittsburgh Summit unanimously decided upon Korea as the host for the November 2010 G-20 Summit.

What most people do not know is that Korea has become a significant international provider of development assistance. In November 2009, for example, Korea became the 24^th member of the OECD’s Development Assistance Committee (DAC), which is the leading source of best practices and review of priority development cooperation issues, and which mobilizes the majority of the world’s official development assistance (ODA), especially for poverty reduction. Korea will also participate in the September 2010 summit on the United Nation’s Millennium Development Goals. Finally, in 2011, Korea will host the Fourth High Level Forum on Aid Effectiveness (HLF-4), an international summit in which government and civic leaders from both developed and developing countries will assess ongoing global efforts to make aid more effective in reducing poverty and promoting economic growth. Through these participatory and leadership endeavors, Korea seeks to play a larger role in resolving global issues and secure its standing as a truly Global Korea in the international community.

Korea ’s Development Cooperation Policy

Between 1945 and the 1990s, Korea transformed itself from an aid-recipient country to a donor, emerging from conditions similar to those faced by poor countries today and achieving economic growth and poverty elimination in a short period time; this successful development has been viewed as a model for poverty reduction. Understanding that sharing its successful development experience with developing countries is the most effective means of assistance, to date Korea has concentrated its international aid efforts on human resources development through technical cooperation and transfer of economic development experience. For example, Korea contributes to human resources development in developing countries by building vocational training centers and providing systemic training programs, invites every year about 4,000 people of developing countries to be trained in Korea, and sends experts and volunteers into the field to transfer the development experience. Last year, the Korean government and the United Nations Development Program (UNDP) signed an agreement to establish a Policy Center on Global Development Partnerships in Seoul, which will focus on transferring Korea’s development experience and knowledge to developing countries. Korea’s ODA has been increasing steadily and in 2008 it amounted to US$802 million, or 0.09 percent of gross national income. Korea plans to increase its ODA to 0.25 percent of its GNI by 2015 – the Millennium Development Goals’ target year.

Along with these quantitative enhancements, Korea is doubling its efforts to improve its aid quality. “Tied aid,” in which aid must be used to procure goods and/or services from the donating country, has long been considered indicative of coherence and effectiveness of aid policies, though this view is changing and “untied aid” is becoming more important. Historically, Korea’s ODA has been heavily tied; in 2007, only a quarter of Korean aid was untied, well below the average for existing DAC members. Korea has now established a road map to reduce its tied aid. Overall, Korea plans to untie 75 percent of its ODA by 2015.

In 2008, Korea spent 56 percent of its gross bilateral aid, which is allocable by region, in Asia, and nearly 70 percent of this funding was focused on East Asia. This indicates a strong local focus for Korea’s bilateral ODA and reflects Korea’s view that its own development experience is most relevant to other East Asian countries. But Korea has recently increased its ODA to Africa, doubling its support to the region through “Korea’s Initiative for Africa’s Development.” In an era when the international division of labor and increased coordination are paramount, maintaining this geographic focus is necessary. Although aid to other regions is very important, as Korea scales up its giving it should stay focused on East Asia, an area in which it has a comparative advantage. It is expected that OECD/DAC membership will help fulfill the policy commitment of expanding Korea’s contribution to the international community and will help systematically improve Korea’s aid system.

However, intra-governmental coordination is a challenge, and the Korean development community remains fragmented. For example, the Ministry of Foreign Affairs and Trade (MOFAT) is in charge of policy-making for grant aid, and the Ministry of Strategy and Finance (MOSF) is in charge of policy-making for concessional loans. In addition to these two core institutions, approximately 30 institutions participate in the execution of ODA programs. In its 2008 Special Review of Korea, the DAC recommended that the Korean government establish “a single entity with sole authority over development cooperation objectives, policy, and strategy.”[1] For example, at present MOFAT and MOSF each produces a separate Country Assistance Strategy (CAS) for a given country; obviously it would be more efficient for the Korean government to develop a single unified CAS for a given country. As the OECD Special Review notes, the lack of a unified strategy “undermines the coherence, efficiency and potential impact of development activities.”

To complement its improved plans for aid as described above, Korea must improve its aid architecture, and enhance the efficiency of implementing development cooperation. In this regard, it is encouraging that recently the Korean government further intensified the roles and functions for substantial coordination of the Committee for International Development Cooperation (CIDC), which is chaired by the prime minister. But considering that past efforts to address the problem through the CIDC have not been very successful, the strong support of high level leadership is needed to establish a cohesive and integrated aid strategy which encompasses the policies and programs of relevant development cooperation authorities.

Development Agenda for the G-20

The G-20 summit has become a premier forum for international economic cooperation, and is expected to become an annual, institutionalized gathering. Korea’s chairmanship of the G-20 in 2010 represents an opportunity to bring development issues to the forefront of global economic policy discussions, and Korea can serve as a bridge between the developing and developed worlds through its own experience and expertise. Korea’s leadership of the G-20 summit and participation in the UN Millennium Development Goals in September 2010 offer opportunities to stimulate a recommitment to the MDGs as the global agreed framework for development to 2015.

The G-20 cannot take on the full scope of development issues; instead it should focus on development efforts where collective global action is required and where global financing facilities are felt to be valuable. A partial list of the most important areas is: food security; climate change; and universal education. If Korea is able to get the G-20 to focus on at least one of those areas, it would be one of the leading countries of the world that bridges the divide between developed and developing countries.

The Fourth High-Level Forum on Aid Effectiveness and Global Development Partnership

The Paris Declaration on Aid Effectiveness, signed at the Second High-Level Forum on Aid Effectiveness (HLF-2) in Paris in 2005 by over 100 ministers, heads of national agencies, and other senior officials from around the world, was conceived to be an international agreement to reform how aid is delivered and managed. It set targets for 12 development indicators to be achieved by 2010, and a monitoring survey is now in place to review progress against the targets every two years.[2] The Fourth High Level Forum on Aid Effectiveness (HLF-4) will be held in Seoul in October 2011, the year after the Paris Declaration’s deadline for achievement of targets, and shortly after the results of the next monitoring survey will be released. The expectation is that the international community will fall short of its targets in a number of areas. It is also likely that progress toward the Millennium Development Goals will be seriously off-track when ministers gather in Seoul. Therefore, the Seoul HLF-4 will be held at a critical time, and Korea can play a central role in expanding international development aid and improving its effectiveness.

Since the Paris Declaration on Aid Effectiveness was signed, global philanthropies, international NGOs, and private corporations have become major private aid players. Emerging or re-emerging donors, especially China and India, have become significant sources of finance for poor countries. Many new or emerging donors look to their own development experience for guidance in their cooperation with other countries, and they may view the established guidelines for conventional assistance as reference materials rather than rules.

As implied by the descriptions above of some of the efforts of the OECD and G20 to improve aid practices and effectiveness, high-level attention is being given to international development assistance. But while we are trying to build stronger relations between donor groups, emerging donors are still generally underrepresented in the global aid decision-making architecture. While there is some general agreement about the need for collaboration with emerging donors, there is virtually no action to engage them. In order to do so, a more inclusive process for setting aid standards must be developed. The developed world should embrace the different viewpoints that the emerging donors represent, in terms of their experiences, and engage them in agenda-setting process.

This evolution in the international aid-giving community indicates that there is a need for new mechanisms that can enable donors to share and coordinate information about aid. Thus, emerging donors will have a chance to increase their global engagement to broad positive effect.

It is clear, therefore, that the Seoul HLF-4 should address changes in the global context for aid. As host of the forum, Korea should make efforts to strengthen and broaden the global development partnership, and also to create common guidelines that all stakeholders – including emerging donors and private aid players – can support. Korea has experience both as an emerging donor and now a DAC member; this experience could help build a bridge the two communities. If a “Seoul Declaration” on aid effectiveness is announced at HLF-4, it would greatly contribute to global development, and it reinforce Korea’s national renaissance and further enhance its image in the world.

Korea’s chairmanship of the G-20 in 2010, the UN Millennium Development Goals Summit in 2010, and the Seoul HLF-4 in 2011 create a good opportunity for Korea to play a larger role in global development. In order to become a truly Global Korea and to live up its ever-increasing expectations as a respected member of the international community, Korea must seize this opportunity and make a lasting contribution to global development.

[1] OECD Development Co-operation Directorate, “Development Co-operation of the Republic of Korea,” August 8, 2008, http://www.oecd.org/dataoecd/53/50/42347329.pdf; accessed January 21, 2010.

[2] See “Paris Declaration on Aid Effectiveness: Ownership, Harmonization, Alignment, Results and Mutual Accountability,” at http://www.adb.org/media/articles/2005/7033_international_community_aid/paris_declaration.pdf.

Slinky

On February 13

Posted: 13 Feb 2010 01:04 AM PST

On this day in ...
... 1918, Betty Mattas was born in Altoona, Pennsylvania. Married while a student at Pennsylvania State University, Betty Jamesproduce the time-honored "helical spring" toy known for its ability to "travel down stairs end-over-end as it stretches and re-forms itself with the aid of gravity and its own momentum." (photo credit)Slinky, initially priced at $1 out of James' concern that it be accessible to low-income buyers. James served as chief executive officer of her family-owned business for nearly 4 decades. She retired in 1998, and in 2001 "became one of the few women inducted into the Toy Industry Hall of Fame." She died last November at age 90. (right)

The Elephant in the ICC’s Case Against Bashir: Head of State Immunity

Posted: 13 Feb 2010 04:54 PM PST

by Julian Ku

Dapo Akande, who seems to know more about head of state immunity than anyone else, has an interesting post on the recent ICC Appeals Chamber non-decision decision in the case against Sudan’s President Bashir. He points out that the Appeals Chamber failed to even mention the question of head of state immunity, which is important in this case because as a non-party to the ICC, Sudan has a pretty good argument that Bashir still has head of state immunity. It is at least a non-trivial argument which would undermine every other issue in the case against Bashir, if resolved in Bashir’s favor. How could it not be addressed? And when will it ever be addressed? I suppose if Sudan or Bashir ever show up to defend themselves. It would be embarrassing if, after all of this, the ICC managed to arrest Bashir only to have its Appeals Chamber decide that he had immunity after all.

Critics Say Google Invades Privacy With New Service

February 13, 2010
Critics Say Google Invades Privacy With New Service
By MIGUEL HELFT

SAN FRANCISCO — When Google introduced Buzz — its answer to Facebook and Twitter — it hoped to get the service off to a fast start. New users of Buzz, which was added to Gmail on Tuesday, found themselves with a ready-made network of friends automatically selected by the company based on the people that each user communicated with most frequently through Google’s e-mail and chat services.

But what Google viewed as an obvious shortcut stirred up a beehive of angry critics. Many users bristled at what they considered an invasion of privacy, and they faulted the company for failing to ask permission before sharing a person’s Buzz contacts with a broad audience. For the last three days, Google has faced a firestorm of criticism on blogs and Web sites, and it has already been forced to alter some features of the service.

E-mail, it turns out, can hold many secrets, from the names of personal physicians and illicit lovers to the identities of whistle-blowers and anti-government activists. And Google, so recently a hero to many people for threatening to leave China after hacking attempts against the Gmail accounts of human rights activists, now finds itself being pilloried as a clumsy violator of privacy.

As Evgeny Morozov wrote in a blog post for Foreign Policy, “If I were working for the Iranian or the Chinese government, I would immediately dispatch my Internet geek squads to check on Google Buzz accounts for political activists and see if they have any connections that were previously unknown to the government."

Mr. Morozov is a researcher on the impact of the Internet on totalitarian regimes at the Institute for the Study of Diplomacy at Georgetown University under a fellowship financed by Yahoo. In an interview, he said the flap over Buzz “definitely undermines Google’s credibility when it talks about freedom of expression.”

In an e-mail message, Todd Jackson, product manager for Gmail and Google Buzz, said, “Google remains completely committed to freedom of expression and to privacy, and we have a strong track record of protecting both.”

Mr. Jackson defended the setup of the Buzz service. He said that Buzz came with a built-in circle of contacts to provide a better experience to users and that many liked that feature. He said that it was very easy for users to edit who they were following on the service and who could follow them. He also said that anyone could hide their list of Buzz contacts with a single click.

After numerous bloggers complained that the privacy controls were difficult to find and adjust, Google agreed to make changes. In a blog post Thursday night, Mr. Jackson wrote that the company had made it easier for people to hide their Buzz contacts and block followers whose identity was unknown.

“It is still early, and we have a long list of improvements on the way,” Mr. Jackson wrote. “We look forward to hearing more suggestions and will continue to improve the Buzz experience with user transparency and control top of mind.”

Mr. Jackson said Buzz had proved popular, with tens of millions of people trying it in the last two days.

But some critics said that Google’s decision to use e-mail and chat correspondence as the basis of a social network was fundamentally misguided. While it is common for social networks to make public a person’s list of friends and followers, those lists are not typically created from e-mail conversations.

“People thought what they had was an address book for an e-mail program, and Google decided to turn that into a friends list for a new social network,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center, an advocacy group in Washington. “E-mail is one of the few things that people understand to be private.”

Mr. Rotenberg said that his organization planned to file a complaint with the Federal Trade Commission claiming that the Google’s use of e-mail conversations to build a social network was unfair and deceptive.

In an expletive-laden article that was widely cited on the Web, a blogger who writes about issues related to violence against women complained that Google had made her fearful. She said that she had unexpectedly discovered a list of people, which may have included her abusive ex-husband or people who sent hostile comments to her blog, following her and her comments on Google Reader, a service for reading blogs and automated news feeds.

“My privacy concerns are not trite,” wrote the blogger, who uses the pseudonym Harriet Jacobs. “They are linked to my actual physical safety, and I will now have to spend the next few days maintaining that safety by continually knocking down followers as they pop up.”

In a further effort to contain the fallout, Google reached out to her and made changes to enhance the privacy of shared comments on Google Reader.

Some privacy experts said that Google had made matters worse by making it difficult for people to hide their lists of Buzz contacts after they realized that those lists had been made public. Some users assumed that they could simply turn off the Buzz service, but that proved inadequate.

“You want to have a simple rollback mechanism, so once things are not what you expected them to be, you can get out quickly and not have to play a game of Whack-a-Mole,” said Deirdre Mulligan, a privacy expert and assistant professor at the School of Information at the University of California, Berkeley.

Google said it was planning to address that issue soon.

Google is known for releasing new products before they are fully ready and then improving them over time. But its decision to do so with Buzz, coupled with its introduction to all 176 million Gmail users by default, appears to have backfired.

“It was a terrible mistake,” said Danny Sullivan, a specialist on Google and editor of SearchEngineLand, an industry blog. “I don’t think people expected that Google would show the world who you are connected with. And if there was a way to opt out, it was really easy to miss.”

An earlier version of this article misidentified the name of the blog Evgeny Morozov wrote a post for. It is Foreign Policy, not Foreign Affairs.
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