Wednesday, March 30, 2005

How can CAFTA help this situation?

As the biggest-name clothing brands hunt for bargains halfway around the world, the factories that became the engine of Central America's formal economy are starting to sputter.

In the first two months of this year, authorities said, 18 plants in Guatemala, Honduras, Costa Rica and the Dominican Republic closed; some 10,000 jobs were lost.

Nicaragua, with Central America's worst poverty and lowest wages, is the only country that has had an expansion in its young garment industry. Textile powerhouses like Guatemala and Honduras, the third-largest clothing exporter to the United States after China and Mexico, have managed to maintain a rough stability. But industry representatives said they expected orders to dry up at many factories by summer.

So far, the ending of the quota system - a 1974 pact known formally as the Multi-Fiber Agreement - has hit hardest in El Salvador. Part of the reason, industry experts said, was that four years ago, this country adopted the dollar as its official currency, giving it no leeway from a devaluation to keep exports competitive. As a result, it has the highest labor and transportation costs in the region.

Saturday, March 26, 2005

Military aid for Guatemala

Rumsfeld was in Guatemala this week to announce a renewal of military aid to that country, $3.2 million worth, the first trickle of its kind in 15 years. Human rights groups are reasonably upset:
”Despite its commitment to ending impunity and combating clandestine groups, the Berger administration has demonstrated a lack of political will and ability to make progress in establishing an effective mechanism to investigate and dismantle clandestine groups,” according to a joint statement by the Washington Office on Latin America (WOLA), the Robert F. Kennedy Memorial Centre for Human Rights, and other groups.

It noted that these clandestine groups or illegal armed groups, which were supposed to have been dismantled after the signing of the historic 1996 Peace Accords, are believed to have ties to Guatemala's military intelligence apparatus, which is also widely believed to have become increasingly active in drug trafficking and organised crime.
This is just a quibble, but I think the framing of this issue around "clandestine" groups doesn't really convey the full extent of the problem, which is that the Guatemalan military has long been tied up with and partially owned by mafia-like groups. Has that really changed? The fact that the military has a new civilian mandate doesn't mean all that much, nor does the fact that its numbers are reduced. If there's evidence of involvement with drug traffickers, etc., what kind of prosecution (even if only internally) has gone on that would demonstrate the military's taken a new direction?

The Bush administration obviously feels that this has changed, or at least that Berger is going to be a better ally in this pursuit than was the thoroughly corrupt Portillo administration.
But the Bush administration, increasingly concerned about drug-trafficking through Guatemala in particularly, has decided to restore funding now. Almost three billion of the 3.2 million dollars that is being restored will be used to upgrade Guatemala's air force and small navy for use in drug-interdiction operations.
Will $3.2 million be enough of a carrot to really make a difference?

Friday, March 25, 2005

Gang blowback

From Newsweek:

...down in El Salvador, officials fear the repercussions of another batch of MS-13 deportees heading their way. "Those deportations are a time bomb," says Bonilla. "When a gang member is deported from the United States, it destroys in one month what we've achieved in a year of [gang-prevention work]."

Thursday, March 24, 2005

The 25th Anniversary of Romero's Death

I haven't had alot of time lately to write much (in one week I'm on a plane out of here), but I would like to note that I've been more and more impressed by Tim's El Salvador Blog, and how he's been able to keep us abreast of Salvadoran news. With gangs and CAFTA on the U.S. agenda, there's only going to be more news in the U.S. media in the coming days, so if you're interested, you should definitely check out his blog.

This month, he's also shared with us many of Oscar Romero's words, and his selection for today -- March 24th, the day he was killed 25 years ago -- seems especially apropos for our current military misadventures in Iraq and elsewhere. Tim has found some of his quotes from Romero through a free e-book available from the Bruderhof Communities (see their daily quotes in the right-hand column here).

Oddly (and wonderfully) enough, the Romero anniversary is partly responsible for my meeting my fiancé. One year ago, in a very quick and casual meeting here in San Salvador, I mentioned that she might be interested in attending a memorial mass at the UCA (in which I was playing cello, accompanying the UCA choir). Perhaps if she had not shown up there, we might never have again laid eyes on each other.

In that vein, I'd like to share one of my favorite passages from Romero (which can be found in the free e-book), that relates to marriage and the family, taken from a homily delivered on October 7, 1979:
I call on all of you, makers of so many families, builders of so many homes: Let each family in El Salvador not be a hindrance to the urgent changes that society needs. Let no family isolate itself from society as a whole because it is itself well off.

No one marries just so the two of them can be happy; marriage has a great social function. It must be the torch that lights up the way to new liberations for other marriages around it.

From the home must come the man or woman able to promote the changes needed in politics, in society, in the ways of justice: changes that will not come about as long as home life opposes them. But it will be so easy once boys and girls are trained in the heart of each family to aspire not to have more but to be more, not to grab everything but to give abundantly to others. They must be educated for love.

Loving is what the family is all about, and loving means giving oneself, surrendering oneself to the well-being of all and working for the common happiness.

Friday, March 18, 2005

Krugman does Latin America

In a somewhat roundabout way, Paul Krugman manages to discuss Latin America while dissing Wolfowitz as the U.S. nominee for president of the World Bank. He notes that many countries are likely to have little faith in the leadership of Wolfowitz, given his involvement in "America's largest foreign aid and economic development project since the Marshall Plan"--the Iraq reconstruction effort. Krugman writes that U.S. officials seemed more interested in installing a regime of privatization than in elections, at the same time that "dogmatic views about the universal superiority of free markets have been losing ground around the world:"

Latin Americans are the most disillusioned. Through much of the 1990's, they bought into the "Washington consensus" - which we should note came from Clinton administration officials as well as from Wall Street economists and conservative think tanks - which said that privatization, deregulation and free trade would lead to economic takeoff. Instead, growth remained sluggish, inequality increased, and the region was struck by a series of economic crises.

The result has been the rise of governments that, to varying degrees, reject policies they perceive as made in America. Venezuela's leader is the most obstreperous. But the most dramatic example of the backlash is Argentina, once the darling of Wall Street and the think tanks. Today, after a devastating recession, the country is run by a populist who often blames foreigners for the country's economic problems, and has forced Argentina's foreign creditors to accept a settlement that gives them only 32 cents on the dollar.

And the backlash has reached our closest neighbor. Mexico's current president, Vicente Fox, a former Coca-Cola executive, is a firm believer in free markets. But his administration is widely considered a failure. Meanwhile, Mexico City's leftist mayor, Manuel López Obrador, has become immensely popular. And his populist rhetoric has raised fears that if he becomes president he will roll back the free-market and free-trade policies of the past two decades.

Mr. Fox is trying to use a minor violation of the law to keep Mr. López off the presidential ballot. If he succeeds, many Mexicans will believe that democracy was sacrificed on the altar of foreign capital.

Not long ago, the growing alienation of Latin America from the United States would have been considered a major foreign policy setback. So much has gone wrong lately that we've defined disaster down, but it's still not a good thing.

Tuesday, March 15, 2005

Arroba de Oro (the Gold Ampersand award)

So it's time to announce that I've been invited to participate in the Arroba de Oro® competitions in Central America as an international jurist for the governmental and NGO websites. Begun in El Salvador a few years ago, this is considered the most important internet competition in Latin America. This year there are competitions in several countries, including Guatemala, El Salvador and Panama. This is probably the most corporate thing I've ever done, but I'm quite happy about the chance to participate.

Along with other judges, I'll review the top ten finalists, and submit my evaluation to an outside auditor, KPMG. They claim total transparency in the voting process, clear evaluation criteria

First up -- Guatemala, where the top prize winner will earn some $50,000. Yeah, that's right. I don't even think there's an equivalent prize of this kind in the U.S.

Sunday, March 13, 2005

Nicaragua: Alemán and Ortega, Worse than Somoza

That's the evaluation of Henry Lewites, the former FSLN mayor of Managua, and theoretically the most popular politician in the country, in an interview in today's La Prensa Grafica. But I also noticed an editorial in the Boston Globe, the first in a series. There we learn more about Lewites' situation:
Lewites wants the Sandinistas to hold a primary to determine their candidate, as they have done in the past. The Sandinistas, supposedly representing the mass of the people, ought to be eager for the kind of voter enthusiasm that this contest would generate. But Ortega had Lewites expelled from the party on Feb. 26, and on March 5 at a routine meeting of the Sandinista Congress, he had himself nominated for president. Ortega fears democracy when it might diminish his power as the chieftain of the Sandinistas.
Despite lots of very depressing news about the sad state of affairs in Nicaragua, I've generally avoided commenting on it. The Globe editorial provides a good summary of just how bad things have become:
The idealism that fueled much of the Sandinista revolution has been replaced by cynicism and careerism fostered by Ortega and his followers. This decline manifested itself just a few weeks after Ortega was defeated by Violetta Chamorro in 1990, when the Sandinista-dominated Assembly passed the ''piñata" laws that legalized property expropriation. The party leadership got to keep the houses they had commandeered when they took power. Ortega now lives in a two-block walled compound carved out of the center of Managua that also houses party headquarters.

Ortega has survived allegations of sexual abuse by his stepdaughter in 1998, defeats for the presidency in 1996 and 2001, and the notorious ''el pacto" he reached in 2001 with the corrupt Arnoldo Aleman, who succeeded Chamorro as president and dominates the majority Liberal party. This bargain divvied up power between the Liberals and the Sandinistas in advance of Aleman's exit from office. Ortega has endured despite continuing hostility from the US government, which he reciprocates.
It will be worth keeping an eye on these editorials in the coming days. It's hard to say which is worse these days, the Ortega-dominated FSLN or Alemán and his cronies in the Liberal party. A renewed left or right would be a positive change, but the outlook isn't good.

Friday, March 11, 2005

Interesting, but unlikely

So, if the U.S. is going to go after Chávez, they're going to let him know beforehand?
VENEZUELA: Statements Indicate Chávez May Indeed Be in Somebody's Crosshairs

CARACAS, Mar 9 (IPS) - Venezuelan President Hugo Chávez has repeatedly claimed that the U.S. government has plans to assassinate him and thus trigger chaos that would allow it to intervene militarily and take control of the South American country's huge oil reserves.

Now, recent statements by the top U.S. official in Venezuela appear to back up his fears of a plot against his life.

In an interview last weekend with the Peruvian newspaper El Comercio, Venezuelan Vice President José Vicente Rangel reported that former U.S. Ambassador Charles Shapiro had warned him of the possibility of an attempt on Chávez's life.

Shapiro, who served as ambassador to Venezuela from 2001 to 2004, ”did not go into details, but felt he was obliged to share this information with us, for legal reasons,” Rangel added.

In the mid-1970s, Washington officially prohibited the Central Intelligence Agency (CIA) from planning or participating in assassination attempts against foreign leaders.

On Tuesday, the current U.S. ambassador to Venezuela, William Brownfield, admitted that "Vice President Rangel is telling the truth. On two occasions, Ambassador Shapiro informed the Venezuelan authorities of actions against the current administration." Brownfield did not clarify the origin of these actions.

"The first time was in April 2002, when he spoke to the (Venezuelan) president about the possibilities of a coup," said Brownfield.

On Apr. 11, 2002, Chávez was ousted in a short-lived coup, and business leader Pedro Carmona was named de facto president. But just two days later, Chávez was restored to power by loyal factions of the military, backed by massive popular demonstrations.

"The other time was in September or October, when (Shapiro) spoke with Vice President Rangel about a possible assassination attempt," said Brownsfield, who added that in both cases, the former ambassador was acting as required by U.S. law.

In January, Cuban President Fidel Castro, a staunch Chávez ally, also warned of plans to kill the Venezuelan leader.

Tuesday, March 08, 2005

Middle East blogging

Nadezhda points us again to a fascinating take on the impact of the internet in the Middle East, by Joseph Braude in The New Republic:

Last week in Bahrain, protestors covered their mouths with tape and silently demonstrated in front of a prosecutor's office; they are demanding the release of a local webmaster accused of "inciting resentment against the government" via his site, Bahrain Online. Several weeks ago an Egyptian blogger announced what he claims is the region's first-ever threat to bloggers by the secret police. Other bloggers, like this one in Syria, write that they are worried of potential interrogations. Two years ago in Tunisia, a man was imprisoned for 18 months for running the site TUNeZINE, which was critical of the government. And recently in Saudi Arabia, a religious court flogged and imprisoned 15 people for trying to march against the government; the instructions to march had come from a Saudi webmaster in London who operates a digital radio station.

These incidents are symptoms of a larger trend: The Internet is now a destabilizing force to Arab governments, some of which are trying and failing to bottle it back up. Despite its relatively modest penetration in the region, the web is threatening the status quo--in societies as conservative as Saudi Arabia and police states as tightly run as Syria and Tunisia--in ways that previous technologies never could. That's in part because it is making obsolete the strategies that Arab governments had used for centuries--with almost perfect success--to quash dissent and cling to power. It may be trite to speak of the Internet's transformative power; but in the case of the Arab world in 2005, it appears increasingly to be real. seems likely that the web's most crucial impact on Arab politics won't be in alerting the west to human rights abuses or rallying support in the international community; it will be in allowing Arab dissidents to talk to one another and coordinate their activities.

Sunday, March 06, 2005

Money Laundering in El Salvador

The State Department's 2005 International Narcotics Control Strategy Report was released this week, and Salvadoran papers were all about what great progress the government had made. I decided to take a look, especially curious about the money laundering volume and what it had to say, given the persistent rumors of money laundering through the enormous construction of an endless number of commercial malls.

First, the context:
Located on the Pacific coast of the Central American isthmus, El Salvador has one of the largest and most developed banking systems in Central America. Its most significant financial contacts are with neighboring Central American countries, as well as with the United States, Mexico, and the Dominican Republic. The January 2001 adoption of the U.S. dollar as legal tender, along with the size and growth rate of the financial sector, makes the country a potentially fertile ground for money laundering.
Then, the problem:
Most money laundering is related to narcotics-trafficking, and, to a lesser degree, kidnapping, corruption, counterfeiting, fraud, and contraband. Criminal proceeds laundered in El Salvador are primarily from domestic criminal activity. There is no significant black market for smuggled goods. Most money laundering occurs through fund transfers between local banks and banks in the United States, the Dominican Republic, and Europe. El Salvador’s financial institutions engage in currency transactions that include large amounts of U.S. currency, and could involve the proceeds of international narcotics-trafficking. It is believed that money laundering proceeds may be controlled by narcotics-traffickers or organized crime.

Decree 498 of 1998, the "Law Against the Laundering of Money and Assets," criminalizes money laundering related to narcotics-trafficking and other serious crimes, including trafficking in persons, kidnapping, extortion, illicit enrichment, embezzlement, and contraband. The law also establishes the Unidad de Investigación Financiera (UIF), El Salvador’s financial intelligence unit (FIU), which is located within the Public Ministry. The UIF has been operational since January 2000. The Policía Nacional Civil (PNC) and the Central Bank also have their own anti-money laundering units.
And then, what El Salvador has managed to do about this:
There were no arrests for money laundering or terrorist financing in 2004. However, two persons were prosecuted on charges of money laundering in 2003. One was convicted and sentenced to serve a prison term of seven years. This was the first conviction for money laundering under Decree 498.
In summary, here are the facts:
  • El Salvador is "potentially fertile ground for money laundering," especially given it's central role in finance throughout the region, and given dollarization of the economy.
  • Large currency transactions "could involve the proceeds of international narcotics trafficking." But in case you're not reading well between the lines, "It is believed that money laundering proceeds may be controlled by narcotics-traffickers or organized crime." Now why would you have a belief about the origins of a money laundering problem that is only potentially a problem?
  • Despite this belief that money laundering exists, and that it may be related to narcotics trafficking, State can't put anything concrete about it in this report because, rather conveniently, there were no arrests for money laundering in 2004, and in fact there's only been one conviction in the past five years that the Financial Intelligence Unit in the Attorney General's office has been functioning.
And we wonder why there's no bad news to report?

Saturday, March 05, 2005

Corruption: When is a problem not a problem?

Update: I'm reposting this for a later date, because I think it may have gotten buried in yesterday's posts. Upon further reflection, I also wonder whether the Foreign Policy editor's perspective on this is tainted by his Venezuelan background. I mean who among us mourns the resignation of any of these Latin American leaders accused of corruption? The most problematic place is Venezuela, where the corrupt establishment was replaced by Hugo Chávez, with whom we know Moisés Naím is not happy.

Moíses Naím has a short, provocative piece in the current issue of Foreign Policy on how the "the war on corruption is undermining democracy, helping the wrong leaders get elected, and distracting societies from facing urgent problems." The problem is especially acute in Latin America, where Naím argues this fixation on corruption is politically destabilizing.
Popular impatience, exacerbated by the belief that nearly everyone at the top is lining their pockets, unreasonably shortens the time governments have to produce results. Since 1990, 11 Latin American heads of state were impeached or forced to resign before the end of their terms. In each case, corruption was a factor.
Naím urges the following:
Simply telling these countries to shake off the shackles of corruption—as foreign investors, politicians, leaders of multilateral institutions, and well-known journalists so often do—is worse than no advice at all. We should be encouraged by the fact that so many forces are aligned together in the fight against corruption. But before we engage the enemy, we should take the equivalent of the Hippocratic oath, and promise to first do no harm.
But is the so-called "war on corruption," the one that Naím says is sweeping the world and unintentionally undermining demcracies everywhere, really a problem?

In such cases, I turn to a good friend of mine who's quite the expert on anti-corruption, having experience with several international institutions and worked on several continents. This was the response I got (emphasis mine):
Like a child having a tantrum, knowing the issue won't go away but wishing it would anyway. Let me see if I follow:

1. Corruption is a terrible scourge and I'm terribly against it (but not really, come on, China is doing GREAT! Just focus on other problems and, well, just do no harm and, while you're at it, stop talking so much about corruption -- but, by the way, no one will pay more taxes or get better services until you do something about it but, never mind about that, move on to greener pastures!)

2. There is this global tsunami of powerful actors and these "powerful" anti-corruption czars everywhere! (The reality is that this "grand coalition" he builds up actually consists of some window-dressing/ toothless/ underresourced czars, 1-2 NGOs and a ton of very angry voters with a few bad choices come election day.)

3. OK, corruption really does exist and there really has been a corruption explosion and it affects all these other problems that matter but all voters in developing countries are the REAL problem -- your "obsession" with this issue is mucking things up. (I guess his basic point here is that they are, well, right but, um, wrong and should acquire more convenient, less mettlesome opinions about some problems that we actually know how to solve.)
So much cognitive dissonance here I don't even know where to start.
Perhaps Naím needs to get out of Washington a bit more often.

Friday, March 04, 2005

Digging into the past on the "Salvador Option"

A couple of months ago (seems like years ago), I wrote Doyle McManus of the Los Angeles Times about a story he'd written during the mid-1980s in which Ollie North revealed a secret CIA program to aid the Salvadoran military. I'd brought up this point in passing, as I tried to argue why I thought what the US military guys in Iraq were talking about was not US secret support for "death squads," but rather programs that constituted a more, shall we say, acceptable element of counterinsurgency.

Well, McManus just wrote me back with his article -- "I had forgotten that I had written it!" -- and I think it's worth reproducing here in its entirety. (Let's just say the public interest trumps copyright claims in this case). And, if anyone's still paying attention, I'd be interested to know if you still think that this was not what was being referred to by the military guys quoted in the Newsweek piece.

Los Angeles Times
Thursday July 9, 1987

Inquiry Discloses CIA Officers' Aid to Salvador Army

Home Edition, Main News, Page 1-1
National Desk
17 inches; 585 words

By DOYLE McMANUS, Times Staff Writer

WASHINGTON -- Congress' investigation of the Iran- contra scandal Wednesday revealed a previously secret program that sent CIA paramilitary agents into the battlefield with the army of El Salvador, U.S. officials said.

Notes made by Lt. Col. Oliver L. North, then a White House aide, revealed that the CIA ran a program of long-range reconnaissance patrols--daring, small-unit expeditions into territory held by leftist Salvadoran guerrillas--until 1985.

"I thought that was a classified program," North protested when House chief counsel John W. Nields Jr. read parts of his notes aloud during the public hearing. "It has nothing to do with the Nicaraguan resistance."

North himself made another unexpected disclosure during the hearing: He said CIA Director William J. Casey believed that the government of Honduras diverted U.S. foreign aid funds to buy weapons--which the Hondurans then intended to sell to the contras for a profit.

North said Casey warned him to keep his secret arms-buying operation for the contras at arm's length from the Honduran-sponsored arms brokers because of "potential adverse consequences"--presumably meaning the uproar that would ensue if U.S. economic aid funds were used to buy weapons for the rebels.

No Confirmation

U.S. officials said they could not confirm that Honduras had used economic aid funds to buy the weapons, but they acknowledged that the issue has been under investigation.

A group of Honduran military officers and American arms brokers bought several million dollars worth of weapons and stored them in a warehouse near Tegucigalpa in hopes of selling them to the contras, whose main bases are in Honduras, the officials said.

"Casey, in particular, was very concerned about the source of their monies," North testified. "At one point, he apprised me that he was concerned that that Central American country might have diverted ESF monies--U.S. economic support funds--to the military, to purchase the arms that went in that warehouse. And so he told me that there shouldn't be any further transactions with that broker."

Officials said it would be illegal for Honduras to use ESF funds to buy weapons.

In the covert program in El Salvador, officials said the CIA organized and led special Salvadoran Army anti-guerrilla units to track the leftist rebels who have been fighting to overthrow the U.S.-backed Salvadoran government.

The use of CIA officers to train the units--known as "Long Range Reconnaissance Patrols," or "LRRPs"--allowed the Reagan Administration to secretly exceed its publicly declared limit of 55 American military advisers in El Salvador, two officials said.

The CIA agents were also allowed to accompany the units into the field, they said, unlike U.S. military advisers, who are under orders to stay out of harm's way.

Possible Flap

Officials said the CIA program could have caused a major political flap had it been exposed before 1984, when U.S. military aid to El Salvador was highly controversial.

However, Congress' intelligence committees were informed of the operations at the time and did not object, Administration and congressional sources said.

"They were spectacularly successful," one official said. "Their mission was to infiltrate deep inside guerrilla territory, find the guerrillas and call in aircraft to hit the targets."

It could not be determined how many CIA officers were involved in the covert program, or whether any had been directly involved in battle. Long-range reconnaissance patrols normally attempt to avoid contact with the enemy so that they can continue moving undetected through hostile territory, one official said.

As the Salvadoran Army gained expertise in anti-guerrilla operations, the CIA phased out its program and turned over its advisory functions to the U.S. military group in El Salvador in 1985, the officials said. They said that the military advisers do not accompany Salvadoran patrols into the field.

Nields disclosed the operation when he read North's notes of a 1985 conversation with Gen. Paul Gorman, then commander of the U.S. armed forces' Southern Command, which directs military operations in Latin America and the Caribbean.

Thursday, March 03, 2005

Desperately seeking justice in El Salvador

I've been lazy about blogging about El Salvador in recent days, so the easiest thing is to point you to Tim's El Salvador Blog. He has a new post up about the appellate court's decision to reverse the $54.6 million verdict against two retired Salvadoran generals accused of being responsible for the torture of citizens during the Salvadoran conflict. Tim's a lawyer by profession, so has some good lawyerly analysis to offer, and he brings that lawyerly caution in his sober analysis of all-things-Salvadoran.

He doesn't so much lament the U.S. decision as the state of justice in El Salvador:
The tragedy is not that the US courts are now closed to victims of a brutal civil war, torture and death squads in El Salvador. A valid argument can be made that the US courts cannot and should not be the courts of last resort for human rights violations in various parts of the world over the past several decades. The real tragedy is that El Salvador never developed a judicial system of its own which could handle such claims.
Then he goes on to note that an amnesty implemented shortly after the Truth Commission report prevented the prosecution of past crimes. True, but that doesn't really excuse or necessarily explain efforts since then to reform the judicial system. Furthermore, an argument can be made that the amnesty was essential for the implementation of other key transitional justice measures in the peace accords, namely the implementation of the recommendations of the Ad-Hoc Commission, which recommended the firing of over a hundred top officers. The U.S. Embassy argued as much at the time (as we know now from cables such as the following one, released under FOIA):
This report—and particularly the unresolved issue of a general amnesty—may complicate President Cristiani’s ongoing effort to effect the removal of the final 15 active duty ESAF officers who were cited by the AHC. These officers are unlikely to step down until the amnesty issue is settled, since there is greater legal and physical protection for them within the military
I tend to think the Embassy may have been right about this. Unlike many other places in Latin America, in fact, there is very little popular sentiment for reopening the wounds of the past. It's also worth noting that the main political actors essentially agreed, secretly, that an amnesty would be necessary as a part of the process. That's why the only thing the UN Secretary General criticized about the measure at the time was that it wasn't fully discussed before getting rammed through the Legislative Assembly.

Having said this, I'm glad that Tim brings the focus back to the responsibility of El Salvador in moving forward in in the reform of its system of justice.

Wednesday, March 02, 2005

Globalizing the Supreme Court's thinking

The ever vigilant judicial watcher, Chuck Lane of the Washington Post, has a keen observation in today's paper on yesterday's Supreme Court ruling against the death penalty for juveniles:

For the Supreme Court itself, perhaps the most significant effect of yesterday's decision is to reaffirm the role of international law in constitutional interpretation.

The European Union, human right lawyers from the United Kingdom and a group of Nobel Peace laureates had urged the court in friend-of-the-court briefs to strike down the juvenile death penalty.

In saying that this strong expression of international sentiment "provide[s] respected and significant confirmation for our own conclusions," Kennedy lengthened the recent string of decisions in which the court has incorporated foreign views -- and decisively rejected the arguments of those on the court, led by Scalia, who say it should consider U.S. law exclusively.

There were actually six votes in Kennedy's favor on that point yesterday, because in her dissenting opinion O'Connor agreed with Kennedy that international trends affect the meaning of "cruel and unusual punishment" in modern times.

I'd like to hear about further commentary on this issue, if anyone knows of any.

UPDATE: Publius over at Legal Fiction has unknowingly answered my request, for sometime in the near future: "It's simply a great case study for both lawyers and non-lawyers. It shows Scalia's jurisprudence at both its best and worst. It also gives me an opportunity to justify the reference to international norms." Keep an eye there, if you're interested.

Also, in a humorous jibe at Glenn Reynolds, Julie Saltman finds an unlikely (and rather illogical) supporter of international norms creeping into Supreme Court decisions.

Further Update: The Economist also reminds us of this precedent:
But it is not the first such case. In the 2002 ruling in Lawrence v Texas, the Supreme Court struck down a state statute forbidding private homosexual conduct. The court ruled that: “Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance…[T]o the extent Bowers [a previous case that had upheld the anti-sodomy law] relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.”
Ken Anderson, my old colleague from Human Rights Watch, now a professor of law at American University and one who holds some critical and unpopular notions about international nongovernmental organizations (many of which I share), takes this issue on directly. Apparently, this issue was broached in January when Justices Breyer and Scalia spoke at American U. You should definitely read Ken's post about that, as well as Julian Ku of Opinio Juris. Meanwhile, this is what Ken has to say about the ruling at hand:
The majority opinion, written by Justice Kennedy, went wildly farther than any other case in invoking international opinion, foreign law, and international law, and I find that very disturbing. It is particularly disturbing in that this is no longer merely a hobby-horse of Justice Breyer's, but something joined by Justices Kennedy and, remarkably, by Justice O'Connor, who dissented from the holding on the death penalty but specifically joined the majority in its reliance on international opinion.

Press coverage has been focused on this practice as though it will remain limited to Supreme Court cases. It will not. The language of the majority approving the practice of paying attention to foreign and international sources is more than broad enough to constitute an invitation to litigants in matters ranging from run of the mill statutory cases to the most profound Constitutional "values" cases - abortion, the death penalty, firearms, church and state issues, and free speech. Both ordinary lawyers and the whole human rights NGO community will now gear up to introduce all these materials into all levels of court cases in this country, with the blessing of the Supreme Court. The other side will have no choice but to respond in kind, seeking vindication of its own side in the same foreign and international materials. Judges will rapidly become used to the idea that this material is as good as any other.

I would predict that, unchecked by an explicit rejection of this material by the Supreme Court itself, the use of this material will spread throughout the US judicial system like an internet virus - because both sides will have to assume in any litigation that it now matters. Corporate defendants will have to search through all this material to find material for their own side; conservative legal groups will have to be able to come up with their own citations from this material, because they will have no surety that such material will not persuade the judge. Certainly numerous activist judges will find it a potent source of material for reaching their own subjective conclusions - just as Justice Scalia predicted and as the Supreme Court just did. But that won't be the worst of it. The worst of it will be the speed with which these materials and their invocation become utterly routine, far outside cases of judicial activism, with the strong possibility of a sea change in the nature of legal authority in this country. Indeed, I think the shift will at least begin to become widely noticeable up and down the court system - and essentially unstoppable - even by the end of Bush's second term.

There is really only one solution to a problem invited from the top, and that lies with a shift in the balance of power in the Court. I would say that attitudes toward foreign law and international legal materials in US constitutional adjudication has now risen to be at the very top of questions for prospective court nominees, and not just Supreme Court nominees. It is also time for Congress to take up specific measures to ensure that Article III courts are limited to US legal materials in Constitutional adjudication. This is the kind of long term, fuzzy, domestic issue that the Bush administration has shown itself frankly unable to focus on - too abstract, too long term, too indirect in its bad effects, and beyond the political event horizon - but it needs to understand the extraordinary nature of the end-run around US law that the Supreme Court has handed activists and NGOs, by handing it to everyone. It is actually a much more important long term issue than tort reform - yet it seems to me highly unlikely that the Bush administration will understand that the Supreme Court has essentially tossed down the gauntlet and that it must act, with Congress, now if it hopes to avoid, twenty five years from now, the conclusion that a sweeping invigoration of the legal materials underlying judicial activism of the Left took place on its watch.
Final update (I promise): More from Julian Ku and Ken Anderson. I'll let the lawyers battle this one out.

Calvin Trillin's latest

Ambassador John Negroponte's Intelligence on the Subject of Torture And Murder Squads

The man who's just been put in charge
Of knowing all will now assure us
That he knew nothing--nada, zip--
When he was stationed in Honduras.

from The Nation

Tuesday, March 01, 2005

International aid: "Millstone or Milestone"

Oxfam International and Action Aid International have a new brief out just in time for a March 2nd OECD High Level Forum in Paris, where the world's richest countries will meet to discuss how aid might help one billion people living in party.

I suppose I should have something more acutely analytical to say about this, but I'm just going to agree with most of what they have to say:

Two years ago in Rome, these same countries made a series of commitments to reform the aid system, and transform it into an effective instrument of change. But instead of celebrating progress, they will be confronted by the results of two years of inaction. This is a sorry tale of muddle and hypocrisy, dithering and stalling, with the world’s poor cast unwittingly in the role of fall guy. For example:

• Less than half of aid gets spent in the poorest countries, and only 10% gets spent on basic services that are critical to achieving the Millennium Development Goals
• 40% of aid continues to be tied to overpriced goods and services from the donors’ own countries
• 80 official agencies are responsible for 35,000 aid transactions a year that are imposing a massive administrative burden on some of the poorest countries.
• Aid conditions continue to impose donor blueprints, such as trade liberalisation and privatisation of essential services, with often devastating results for poor people

The lack of progress since Rome raises fundamental questions about the commitment of rich countries to the 2015 Millennium Development Goals. Without aid reform, these goals will not be met, and the ambitions of major donor countries to use 2005 as a turning point in international development will be jeopardised. Yet the script can read differently. In Paris, the donor agencies have the opportunity to make the OECD-DAC High Level Forum a milestone in international efforts to eradicate poverty, rather than a millstone for the world’s poor. To make aid an instrument of deep and lasting change, donors must agree to do some simple things to improve its efficiency and accountability.

If this is of interest, be sure to click here to read the full executive summary for a glimpse at their recommedations, or here for the full report.