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International enforcement law trends for 2010 and beyond: can the cops keep up with the criminals?


During the last decade a major public policy issue in the United States--and indeed the world--has concerned the appropriate strategy and means to prevent and punish international crime. In the 1970s and 1980s, the United States led the effort in counter-drug policy. An instrumental part of the strategy is the anti-money laundering and asset forfeiture laws enacted in the mid 1980s. This policy was exported to the international community and became enshrined in the 1988 Vienna Convention against the trafficking of narcotics and psychotropic substances. (2) During the Clinton Administration, the focus of this policy expanded to combating transnational organized crime (TOC), including the use of economics sanctions against TOC, which became embodied in the U.N. Palermo Convention. (3) The policy focus under George W. Bush was counter-terrorism and the use of the "war" paradigm. Similarly in 1977, the United States enacted the Foreign Corrupt Practices Act (FCPA) and has led the crusade against transnational corruption. These policies are embedded in about five international anti-bribery conventions. Currently, under the Obama Administration, the United States has prioritized making strategic revisions in U.S. international criminal policy.

This article discusses developments in the United States and international policy with respect to international white collar crime, as well as the interaction between international criminal law, especially counter-terrorism, and international human rights law. One question is whether the U.S. government and lawyers will play a leadership role in international enforcement policy and law.


The modern economy, globalization, and new technologies facilitate the spread of transnational crime, especially economic crime. The fact that new types of substantive international crimes emerge every decade, such as cybercrimes and money laundering, is a recent phenomenon. Just as importantly, the procedural aspects of international criminal law continue to grow. (4) For instance, the interplay of free trade and economic integration is a double-edged sword. On the one hand, to the extent free trade agreements (FTAs) and economic integration do not confront criminal cooperation and justice, they facilitate the growth of transnational crime. On the other hand, to the extent FTAs and economic integration do confront these issues within the agreement, as is the case with the pacts governing economic cooperation within the European Union, they become a laboratory for cutting-edge international criminal cooperation and criminal justice developments.

Another essential and dynamic component of international criminal law is the evolving framework of institutions. The dramatic growth of broad criminal justice agendas within traditional international institutions like the Organization of Economic Cooperation and Development (OECD) and multilateral development banks led by the World Bank Group continues to make criminal law a growth sector. Concomitantly, the international community is increasingly establishing informal groups, such as the G8, G20, Financial Action Task Force, and the Egmont Group, to deal with various international criminal groups. (5) Just as important has been the rise of national institutions throughout the world, such as counter-drug enforcement agencies, financial intelligence units, and asset forfeiture agencies. (6)

A. Environment Giving Rise to International Economic Crimes

Contemporary transnational criminals take advantage of globalization, trade liberalization, and emerging new technologies to commit a diverse range of crimes, and to move money, goods, services, and people for purposes of pure economic gain or political violence. (7) A key component facilitating international white collar crime is trade liberalization, especially FTAs. The problem is that the lack of foresight, leadership, and favorable politics prevents trade negotiators from providing for comprehensive enforcement mechanisms. These comprehensive enforcement mechanisms are consequently completely omitted or treated as isolated subjects.

For instance, in the North American Free Trade Agreement (NAFTA), there is a section on intellectual property enforcement and a handful of provisions on customs cooperation and enforcement. (8) Customs enforcement is a subject that FTAs normally cover. However, the coverage of intellectual property (IP) enforcement reflects the strong influence in the United States of IP groups. As a result of failing to include comprehensive enforcement provisions in FTAs, criminals, including individuals and organizations, are able to take advantage of FTAs to conduct their criminal activities. FTA members usually became aware of the growth of criminal problems arising out of FTAs several years later. (9) They then try to develop ad hoc enforcement agreements and arrangements. These agreements and arrangements usually have a narrower scope than the FTAs, usually lack institutional support, and sometimes overlap. (10) As a result, the international enforcement architecture arising out of FTAs cannot sustain enforcement needs.

Transnational criminal groups and criminals live and operate in a borderless world. Increasingly, transnational criminals are diversifying their crimes, instrumentalities, markets, and networks. Their intelligence networks and the coincidence of economic and political power enable them to quickly adapt and operate in "gray areas" where governments do not effectively control their territories, such as Afghanistan and parts of Pakistan and Yemen. (11) Transnational criminals can also operate surreptitiously through the use of sleeper cells. (12) While national governments have determined that transnational organized crime and terrorism are national security threats and have implemented various initiatives to combat them, (13) they are continuously and actively seeking more significant political and legal initiatives to establish effective international enforcement regimes. Some policymakers believe that effectively combating new transnational crimes requires significant transformations in national legal systems. (14) In fact, the international community and individual countries such as the United States have enacted a substantial amount of new legislation and developed initiatives to combat new transnational crimes, in areas such as cybercrime, intellectual property, international tax, terrorism, and organized crime. (15)

Cybercrime exemplifies the difficulty of trying to keep pace with the tremendous changes in technology that have enabled criminals to perpetrate diverse crimes, such as financial fraud, identity theft, pornography, hate crimes, and a vast range of other offenses. The international community is struggling to develop an enforcement regime that can use the new technology to assist in the identification, investigation, and prosecution of cybercriminals. In this regard, the proposed Council of Europe Convention Against Cybercrime provides a strong potential mechanism. (16)

Intellectual property and counterfeiting crimes have also grown tremendously in recent decades. Criminals counterfeit everything from software to cosmetics and clothing, including nearly every product that is sold internationally. The international community and governments have tried a combination of international trade law, such as Trade in Related Intellectual Property Services (TRIPS) and NAFTA, to criminalize violations of transnational intellectual property. (17) For instance, the U.S. trade associations such as the International Intellectual Property Association and the Motion Picture Association of America have pressured the U.S. government to bring an action against Mexico because of the alleged lack of criminal action by the Mexican Government against persons who intentionally violate intellectual property law. (18) Indeed, these same U.S. trade associations succeeded in persuading the NAFTA signatories to include provisions requiring criminal prosecution and civil action against violators of intellectual property law--the only part of NAFTA that allows for criminal sanctions. (19)

Money laundering is an example of the type of crime that governments and the international community have only criminalized since the mid-1980s. Through international conventions, such as the 1988 U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, the international community has extended the use of a new anti-money laundering enforcement regime to the entire world. (20) Signatories are required to criminalize laundering offenses and initiate asset forfeiture and confiscation as remedies. These conventions require a broad range of international enforcement cooperation, including evidence gathering and extradition, and also suggest a range of more customized bilateral cooperation agreements. (21) Institutionally, the new crime of money laundering has spawned the establishment of financial investigative (or intelligence) units (FIUs) around the world and the Egmont Group, an association of FlUs that meets regularly to facilitate cooperation among FIUs and develops uniform approaches to core issues. Anti-money laundering has also given rise to new organizations and groups, such as the Financial Action Task Force on Anti-Money Laundering (FATF). Growing out of the G8 meetings, FATF has developed cutting edge requirements on legal, financial, and external relations with respect to anti-money laundering. (22) Unfortunately, the erosion of bank and financial privacy has been among the many legal transformations brought about by anti-money laundering laws. (23)

In the aftermath of September 11, 2001, the emphasis of the U.S. government and the international community on counterterrorism financial enforcement has increased. (24) The U.S. government has initiated a comprehensive financial strategy aimed at detecting and preventing, through financial movements, transnational terrorist movements and plans. The strategy is designed to investigate, prosecute and seize terrorist assets by applying the anti-money laundering due diligence requirements commonly used by the private sector to counterterrorism. Simultaneously, the United States is applying economic sanctions to terrorists. (25) The U.S. strategy seeks to develop a comprehensive, international counterterrorism financial enforcement regime.

While the international community has engaged in tax enforcement cooperation for many years through exchange of information provisions in income tax treaties and standalone exchange of information agreements, many national courts have traditionally taken the position that individual countries will not help collect the taxes of other countries. As a result, courts refused to enforce foreign tax judgments and even requests for assistance. (26) During the last two or three decades, however, the international community has developed multilateral conventions, such as the 1983 Council of Europe/OECD Convention on Mutual Administrative Assistance in Tax Matters, to overcome the traditional judicial reluctance to help foreign tax authorities. (27) Increasingly, international organizations of tax authorities have met regularly to develop uniform approaches, networks, and conventions to reduce gaps in tax laws and strengthen enforcement cooperation. Additionally, national governments have criminalized tax fraud and evasion and have imposed extensive and draconian reporting regimes that include administrative penalties for non-compliance. (28) The international community has developed offshore blacklisting as a means of accelerating compliance with new financial "soft laws." In 1999 and 2000, governments and international organizations continued their active efforts to increase regulatory and criminal enforcement to stem the tide of transnational crime. These efforts resulted in the criminalization of various business and financial transactions, the imposition of new due diligence measures on the private sector and the concomitant weakening of privacy and confidentiality laws, strengthened penalties for non-compliance with regulatory efforts, and new law enforcement techniques like undercover sting operations, wiretapping, expanded powers to search homes and businesses, and controlled deliveries. (29) A major development in 2000 was the almost simultaneous issuance of several blacklists against non-compliant organizations. Within a one-month period, OECD issued its harmful tax competition initiative with a list of tax havens that did not agree to publicly commit to bring their practices into compliance; the Financial Stability Forum (FSF) issued its report on offshore financial centers (OFCs), classifying OFCs into three levels of compliance with international standards; and the Financial Action Task Force on Anti-Money Laundering (FATF) issued its list of 15 Non-Cooperative Countries and Territories. (30) The simultaneous issue of blacklists is an attempt to jumpstart the anti-money laundering enforcement regime and confer on soft laws a greater status in international law and politics. The October 2005 FATF decision to continue blacklisting fifteen non-cooperative countries, together with the lack of any new commitments by the OECD harmful tax competition initiative and the decision by the International Monetary Fund (IMF) to take over the OFC work of the FSF, has meant that some companies, businesses, and investors are reconsidering the structure of their investments. (31) The convergence of these initiatives also show a determination by intergovernmental organizations to combine development of an international financial enforcement sub-regime, which includes international tax and anti-money laundering policy, with the new international financial architecture, particularly the work on the FSF.

On December 15, 2000, 124 countries signed the U.N. Convention on Transnational Organized Crime at a conference in Palermo, Italy, signifying the start of the construction of an international enforcement regime against transnational organized crime. (32) The Convention's three protocols--one to prevent, suppress, and punish trafficking in persons; a second against the smuggling of migrants by land, air and sea; and a third on the illicit transfer of firearms--represent a new effort to attack transnational organized crime activity. (33) The Convention, effective as of the start of 2006, employs some of the same methods of the U.N. Counterdrug Convention, including using anti-money laundering and asset forfeiture against transnational organized crime. (34)

The challenges of transnational criminality are substantial. Unless nation-states become better at networking and cooperating, they will lose ground to transnational criminals who operate in a borderless world. In order to gain and maintain respect for their democracies, states must develop international enforcement regimes that are balanced and maintain fundamental and international human rights. To achieve success in combating transnational crime, criminal justice professionals must become more adept at working with non-criminal legal professionals, diplomats, international relations professionals, and a host of others. For instance, criminal justice professionals must study international organization theory and chart the start, emergence, and evolution of international enforcement regimes. Indeed, new transnational crimes and responses in the context of globalization will continue to pose a mighty challenge to the legal and law enforcement professions.

B. The Scope of International White Collar Crime

International white-collar crime, as a field of expertise, embraces a number of the problems in the areas where criminal, business, economic, and international law overlap and interact. (35) Economic crime and financial crime are ambiguous terms, referring to diverse activities that cannot be included under a homogenous rubric. The newness of the field and the overlap of criminal and administrative penal law, as well as the scope of economic and financial law, and the divergences among legal systems also make an accurate definition elusive. (36) The area is undergoing tremendous change and growth as a result of globalization and the increasing use of criminal and administrative penal sanctions to enforce international business norms.

One dynamic aspect of international white-collar crime is that economic crime reacts to systemic economic changes caused by new combinations of productive factors. For example, banking and computers have led to cyberbanking and cyber financial products like Internet gaming. Deviant entrepreneurs introduce new combinations of productive factors while devising deviant adaptations to economic changes to pursue legitimate goals through illegitimate means. White-collar criminals also innovate by repelling the criminal label from their activity while directing it to competitors. Innovation in international white-collar crime therefore requires changes in the perception of business, whereby persons who innovate successfully claim their activities and practices to be ethical and those of competitors to be unethical. (37)

Some background on international criminal law (ICL) is also required to understand international white-collar crime. ICL is largely a mix of the "penal aspects of international law and the international law aspects of criminal law." (38) The international aspects of national criminal law consist of extraterritorial jurisdictional norms, conflicts of criminal jurisdiction between either American states or between a state and an international organization, and the international sources of law applicable to modalities of international cooperation in penal matters, or the indirect enforcement system. (39) The latter are found in multilateral and bilateral treaties, customary international law, and norms applicable to national legal proceedings. (40)

The penal aspects of international law arise out of "conventions," "customs," and "general principles of law," all of which are among the sources of international law as set forth in Article 38 of the International Court of Justice's statute. (41) However, the sources are subject to the principles of legality which derive from general principles of international law. The penal aspects of international law include: international crimes, elements of international criminal responsibility, the procedural aspects of the direct enforcement system of ICL, and certain aspects of the enforcement modalities of the indirect enforcement system of ICL. Increasingly the penal law aspects of international law have expanded and now overlap with the international law aspects of national criminal law. (42)

The importance of national security law must be added to this background analysis. Indeed, some of the coverage of national security law overlaps with that of international criminal law. Additionally, proper architecture of international enforcement policies requires a consideration of international relations, especially the role of diplomacy, soft power, and the creation and development of international regimes and regime theory.

1. Substantive White Collar Crimes

Substantive white-collar crimes refer to legal areas of crime that national and international laws seek to prevent and punish. They can include fraud, computer crimes, securities, commodities futures, antitrust, intellectual property, customs, export control, environmental, money laundering, organized crime, transnational corruption, and taxation. (43) As mentioned above, the amount of substantive international white-collar crimes continues to grow dramatically.

2. Procedural Aspects of White-Collar Crimes

The procedural aspects of international white collar crimes embrace all the national and international features of investigating, prosecuting, and then enforcing sanctions against white-collar crimes. Procedurally international white-collar crime includes jurisdictional inquiries, evidence gathering, asset freezes and forfeiture, gaining custody (i.e., extradition and alternatives), transfer of proceedings, recognition and enforcement of judgments, and transfer of prisoners. One of the expanding areas of the procedural aspects of international white-collar crime is administrative penal procedural law. In particular, recent years have seen a rise in international conventions including, for example, tax information exchange agreements, securities, commodities futures trading enforcement agreements, and anti-trust enforcement agreements. (44)

3. The Role of International Organizations

The role of international organizations, also known as international governmental organizations (IGOs) is critical because these IGOs develop hard and soft-law standards in international white-collar crime and help implement the standards. Some IGOs operate on a universal level while others operate on a regional level. Some IGOs have functional scopes, such as for banks, securities and commodities futures regulators, financial intelligence units. The international financial crisis has exerted pressure on IGOs to develop new international white-collar crime-prevention mechanisms. In lieu of using solely traditional IGOs, such as World Bank Group, the G8 countries have established the G20, an enlarged form of the G8, to create financial regulatory and enforcement policies and laws. (45)

Institutional responses to international white-collar crime are triggered by diverse forces. First, international pressure demands that, wherever possible, legislative loopholes be closed and approaches and laws be harmonized. Second, it is generally known that this type of crime heavily impacts on public finances. Third, the perception exists that international white collar crime encourages the development of more conventional forms of criminal activities that in some places are characterized with the synthetic name "organized crime." (46)

International organizations engaging in important international criminal law work include the United Nations, Interpol, World Bank Group, as well as regional organizations, such as the Council of Europe, the European Union, the Organization of American States, and economic integration organizations.

4. The Role of Non-governmental Organizations

Increasingly, non-governmental organizations (NGOs) are playing important roles in international white-collar crime. Some NGOs, such as the International Committee of the Red Cross, Human Rights Watch, and Amnesty International, focus on international human rights and international procedural issues. (47)

Other NGOs, such as bar associations, have formed committees on international criminal law that focus in part on white-collar crime. For instance, in addition to the American Bar Association's (ABA) crime prevention role in the private sector, the ABA development of rule of law programs has involved diverse work in criminal law, such as anti-corruption, anti-money laundering and terrorist financing, and strengthening judicial and law enforcement institutions. (48) Law enforcement professionals have their own NGOs, such as the International Association of Chiefs of Police and the International Association of Prosecutors. Other NGOs are comprised of business groups, such as the International Chamber of Commerce and various bankers associations. Because international white-collar crime emphasizes the privatization of some of the prevention and related crime-solving roles, business groups have become important partners with governments and IGOs.

5. Constructing International Enforcement Regimes

One of the subjects discussed in this article is the effort to develop international enforcement regimes. The discipline of international relations explains the manner in which international institutions affect collaboration among states. Known as regime theory, the explanation has been an important focus of international relations study for the last twenty to twenty-five years. Regime theory explains the role of international organizations in mediating and defining international relationships. One of the most prominent scholars of international regime theory, Stephen Krasner, has stated that international organizations or regimes "can be defined as sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given area of international relations." (49) Regimes can take well-defined forms, such as the United Nations, or they can exist more informally, such as through networks. Regime theorists believe that regimes are common mechanisms of international cooperation whose importance is derived because they shape the means through which states relate to one another in ways that theorists who examine states as autarchic entities in an anarchic international system cannot successfully explain. (50)

According to Robert O. Keohane, one of the important theorists of international regime theory, regimes attract the participation of states by reducing the transaction costs of mutually beneficial cooperation. (51) Regimes facilitate multilateral negotiations, legitimate and delegitimate different types of state action, enable the exchange of information, and promote the basis for enforcement of agreements. (52) Professor Keohane defines international regimes both as "institutions with explicit rules, agreed upon by governments, that pertain to particular sets of issues in international relations," and more narrowly as "specific contractual solutions to international problems." (53) Within a multilayered system, an important function of international regimes is to facilitate the making of specific agreements on matters of substantive importance within the issue-area encompassed by the regime; in this case, international enforcement and international enforcement sub-regimes like anti-money laundering, counter-terrorism financial enforcement, anticorruption, and tax enforcement. (54) Hence, regime theory offers a useful mechanism to describe international enforcement cooperation, including efforts to build an enforcement regime against transnational crime or at least various types of transnational crime. (55)

Efforts to develop international enforcement sub-regimes include the establishment of the Egmont Group of Financial Intelligence Units, which has its headquarters in Canada. Among its many functions, the Edgmont Group described is developing international anti-money laundering enforcement and regulatory regimes. Various international anti-corruption conventions are also starting to develop an anti-corruption enforcement sub-regime. (56)

6. The Role of International Enforcement Networks

An important breakthrough in international enforcement has been the development, as part of regime enforcement, of governmental networks. The identification of governmental networks arises in part from the discussion about the emergence of a world politics paradigm. Such a paradigm arises out of new transnational relations that transcend the nation-state and broaden the conception of actions to include transnational actors like nongovernmental organizations. (57) Anne-Marie Slaughter has done much pioneering work in this field. She explains:
   Each of [the] networks has specific aims and activities, depending
   on its subject area, membership, and history." Taken together, they
   also perform certain common functions. They expand regulatory and
   enforcement reach. Networks permit national government officials to
   keep up with other actors, such as corporations, civic
   organizations, and criminals. They build trust and establish
   relationships among their participants that then create incentives
   to establish a good reputation and avoid a bad one in terms of the
   implementation of the obligations of the enforcement regime. These
   are the conditions essential for long-term cooperation. They
   exchange regular information about their own activities and develop
   databases of best practices. They offer technical assistance and
   professional socialization to interested members from less
   developed nations, whether regulators, judges, or legislators. (58)

The concept of a "network" has many different definitions. A network includes all the different ways that individual government institutions are interacting with their counterparts, whether lateral or above them, alongside more traditional state-to-state interactions. Hence, a network is a pattern of regular and purposive relations among like government units working across the borders that divide countries from one another and that demarcate the "domestic" from the "international" sphere. (59)

Networks have important aspects as a form of global governance and as a foreign policy option. As a form of global governance, government networks are quite useful. These are networks composed of national government officials, either appointed by elected officials or directly elected themselves. They can perform many of the functions of a world government--legislation, administration, and adjudication--without the form. (60)

Government networks facilitate compliance because, as noted above, international regimes promote the making of agreements. Governments' anticipation that international regimes will increase compliance motivates their making of such agreements. By creating incentives for compliance, regimes also make it more attractive for potential members to join. Social pressure, exercised through linkages among issues, provides the most compelling reason for governments to comply with their commitments. Hence, governments may comply with rules because if they do not, other governments will observe their behavior, evaluate it negatively, and perhaps take retaliatory action. (61) Sometimes retaliation will be specific and authorized under the rules of a regime, such as black lists in the context of the OECD harmful tax practices and the FATF initiative against non-compliance countries and territories (NCCT initiative). In this connection, states and territories targeted by the OECD and FATF initiatives perceived that the costs of acquiring a bad reputation as a result of rule violations imposed on them as transgressors of international standards were not worth the conduct. (62) Hence, a number of them agreed to enact new laws, adopt new principles, and strengthen their enforcement cooperation in tax, in the context of the OECD harmful tax practices initiative, and in anti-money laundering, in the context of the NCCT initiative. Similarly, signatories to the OECD anti-corruption convention discussed in Part 4 are subject to periodic evaluations of their compliance. The evaluations are public and quickly reviewed by civil society groups, such as Transparency International. As a result, government members of the OECD anti-corruption convention encounter pressure to conform their laws and regulations and how they are implemented to their obligations under the convention.

Understood as a foreign policy option, a world of government networks working alongside--and even within--traditional international organizations should be particularly attractive to the United States. For reasons of legitimacy, burden sharing, and effectiveness, the United States has taken the lead in dealing with some problems multilaterally rather than unilaterally, such as international crime syndicates and transnational terrorism. (63) In the 1980s the United States exercised leadership in developing anti-money laundering and asset forfeiture enforcement sub-regimes. "Government networks could provide multilateral support for domestic government institutions in failed, weak, or transitional states." (64) They could play an instrumental role in supporting and reforming government institutions in countries that seek to meet new international enforcement regimes. (65) Indeed, the U.S. government during the Clinton Administration announced a major initiative against transnational organized crime. During a speech at the U.N. General Assembly, President Clinton unveiled an initiative against transnational organized crime and urged the international community to join it. (66)

To understand the roles and opportunities of government networks one must consider collaborations among governments, including their basic institutions, with their foreign and supranational counterparts like the World Bank Group, the United Nations, Interpol, and economic integration groups. (67) States will still be crucial actors in this collaborative environment, but in a "disaggregated" form relating through "the foreign affairs office [and] regulatory, and legislative channels." (68) For instance, in the parlance of an international enforcement regime, viewing the government participants means realizing that they are more than the unitary state, as represented by the Foreign Affairs Office (i.e., U.S. Department of State). Instead, among the key government participants of international enforcement networking are the officials of the U.S. Department of Justice, the U.S. Department of Treasury, Customs Services, Immigration and Nationality Service (the latter two as part of the Department of Homeland Security), and federal and state prosecutors.

Ms. Slaughter properly observes that viewing the world "through the lens of disaggregated rather than unitary states allows leaders, policymakers, analysts, or simply concerned citizens to see features of the global political system that were previously hidden." (69) The disaggregated view of states not only illuminates government networks in international regulatory and enforcement systems, but also allows state components, such as courts and legislatures, to form national and supranational networks of government officials. In addition to disaggregated states, Slaughter also observes the possibility of "vertical networks", which would be comprised of national officials and their supra-national counterparts. (70) Examples include relations between national criminal justice professionals, such as U.S. Department of Justice, and international organizations, such as the Inter-American Drug Abuse Commission (CICAD) at the Organization of American States (OAS). (71) Other examples are the International Criminal Tribunal, European national courts, the European Court of Justice, and the ad hoc international criminal tribunals (i.e., International Criminal Tribunal for the Former Yugoslavia) or the International Criminal Tribunal. (72)

The demand for conceptualizing and providing more opportunities for government networks arises out of the globalization paradox, whereby more government is needed, but too much government is feared and believed to be dangerous, at least by a portion of society. (73) In the 1990's, an international preference emerged for global governance, a concept much less stringent and restrictive than the idea of world government. (74) In order to effectuate global governance, the 1990's saw increased use of global policy networks.

Global policy networks arise out of various "reinventing government" projects. These projects focus on the many ways in which private actors now can and do perform government functions, from providing expertise to monitoring compliance with regulations to negotiating the substance of those regulations, both domestically and internationally. The problem is ensuring that these private actors uphold the public trust. (75)

Although trans-governmental cooperation has expanded significantly during the last couple of decades, it is not a new phenomenon. For instance, the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs attempted to establish a transgovernmental network to control drug trafficking by coordinating communications by new international agencies. (76) The communications were to occur directly between these agencies rather than through normal diplomatic channels. Hence, the 1936 Convention endeavored to establish a trans-governmental network for drug control. (77)

The global governance dilemma could rightly be called a "trilemma": the international community needs global rules, but without centralized power, and with government actors who can be held accountable through political mechanisms. (78) These government actors can and should interact with a wide range of nongovernmental organizations (NGOs), but it is important to keep in mind that the respective roles and motivations of governments and NGOs will be distinct and different. The governments must represent the wishes of each of their various constituencies (at least in a democracy). Corporate and civic actors, however, may be motivated by profits and non-economic goals, respectively. One such civic actor, for example, is the pro-business Chamber of Commerce, which was founded in 1919 and is one of the longest standing private sector companies with associations in 130 countries around the world. (79) Other examples are Transparency International, the International Association of Chiefs of Police, Amnesty International, and Doctors Without Borders. If and when effective global collaboration between governments and these organizations become feasible and beneficial however, a warning should be heeded: "Governance must not become a cover for the blurring of these lines," Slaughter argues, between the motivations and goals of public and private actors. (80)

Robert Keohane and Joseph Nye, on the other hand, have sought to distinguish "transgovernmental" activity from the broader category of transnational activity. They define transgovernmental relations as "sets of direct interactions among sub-units of different governments that are not controlled or closely guided by the policies of the cabinets or chief executives of those governments." Moreover, government networks established for limited purposes, such as postal services and telecommunications, have existed for almost a century. (81) Only the scale, scope, and type of transgovernmental ties are truly new. Links between government officials from two, four, or even a dozen countries have become extremely dense. Government networks have developed their own identity and autonomy in specific issue areas, such as the G8, Interpol, the FATF, and the various organizations and groups of tax administrators and enforcers. They perform more functions than in the past, from collecting and disseminating information on global or regional best practices to actively offering technical assistance to poorer and less experienced members, and they have spread far beyond regulators to legislators, judges, and enforcement officials.

Government networks have also become recognized and semi-formalized ways of doing business within loose international groupings like the British Commonwealth and the Asian-Pacific Economic Cooperation (APEC). (82) At the same time, they have become one of the principal forms of governance for the EU, which is itself pioneering a new form of regional collective governance. (83)

One of the weaknesses critics have underscored about networks is that they "reduce transparency and impede accountability." (84) The club-like, informal nature of networks often reinforces the dominance of major economic powers, especially the inequalities between the global North and South. (85) Networks may also offer an ultimately dangerous substitute for traditional multilateralism. (86) Consider, for example, the operation of the regulatory and enforcement aspects of the OECD and FATF. Critics have questioned the international politics of the elaboration and implementation of the new regulatory and enforcement regime and sub-regimes. (87) The processes of the FATF initiative against non-cooperative countries, the OECD harmful tax practices initiative, and FSF (now IMF/WB) initiatives suffered from: (1) exclusion from most of the decision process by the very countries that are the targets of the policy; (2) lack of adequate participation in policy-making and implementation by the private sector; (3) lack of transparency in the decision-making process; (4) the apparent use of economic sanctions and coercion in the way of blacklists without binding hard law; (5) differential and favorable treatment of its own members whose inadequacies have not resulted in blacklisting; (6) apparent efforts to usurp critical policymaking from democratically elected governments without adequate participation by such governments; and, (7) questionable substantive policy design, especially in the case of the OECD HTC initiative. (88)

Meanwhile, IGOs continue to advocate for more democratic and transparent processes. For example, in issuing its Consultation Paper on revised recommendations on anti-money laundering and counterterrorism financing on May 30, 2002, FATF requested the views of all interested parties, including non-FATF members, the private sector, or any other interested persons. (89) FATF also arranged two meetings to allow interested groups to provide oral comments. Similarly, the IMF/WB is making efforts to improve transparency in preparing new AML assessment methodology (90) and the OECD HTP initiative is striving to include so-called tax havens and other countries in its Global Forum. (91)


1. Economic Integration

Economic integration plays an important role with respect to transnational business crimes. For the most part, governments concluding free trade agreements (FTAs) and economic integration agreements have perceived business crime as merely an afterthought, perhaps because persuading legislatures to overcome nationalist sentiments and limit sovereignty through FTAs or single markets already consumes significant political capital. The decision to include regulatory--let alone criminal and quasi-criminal measures--within an FTA or single market arrangement cannot therefore be taken lightly. (92)

As a result of the political decision to minimize criminal and enforcement institutions and mechanisms when entering FTAs, common markets, or economic integration arrangements, criminals are often quick to identify and exploit opportunities to enlarge their illicit operations. (93) The lowered barriers allow them to conduct transnational business on a wider scale while facing diminished risks. Where criminal and enforcement provisions are included in FTAs and single market arrangements, they are typically narrow and arise from intense special interest lobbying rather than from a pure desire for better transnational governance. For instance, NAFTA includes intellectual property and customs enforcement due primarily to the intense and successful lobbying efforts of U.S. intellectual property interests. (94)

Successful criminal justice systems require three elements: information, evidence, and a suspect. The more these components are dispersed, the less likely they are to exist together within the physical jurisdiction of just one government. The main barrier impeding international law enforcement, then, is that governments rarely have the ability to perform criminal justice activities within the borders of other sovereign nations. To do so would violate the territorial sovereignty of the other government. Furthermore, nations differ with respect to their culture and political, social, economic, and legal systems. Criminals can and do take advantage of these distinctions, which, taken together, prevent effective international enforcement cooperation. National and sub-national law enforcement officials must therefore try to nullify the advantages criminals derive from operating across borders and reduce, circumvent, or transcend the frictions that impede international law enforcement. (95)

By reducing controls on transnational commerce through common market arrangements and FTAs, for example, states can reduce the administrative burdens of transnational cooperation between customs and criminal justice officials. Economic integration reduces border control and expands the ability to move goods, services, capital, and people. Hence, law enforcement officials must compensate for the loss of border controls in dealing with economic and other crime. (96) Effective law enforcement cooperation involves harmonization, which encompasses three distinct processes: regularization of relations among law enforcement officials of different states; accommodation among systems that retain their essential differences; and homogenization of systems toward a common norm. (97) The more rudimentary and asymmetrical nature of international criminal cooperation and criminal justice harmonization in the Americas contrasts sharply with the closer cooperation and criminal justice harmonization in Western Europe.

2. U.S.-Mexico Law Enforcement Cooperation

On March 29, 2010, in the aftermath of the deaths of three persons linked to the U.S. consulate in Ciudad Juarez, the U.S. and Mexican heads of External Affairs--Secretary of State Hillary Clinton and Secretary of Foreign Affairs Patricia Espinosa--issued a joint statement at the conclusion of the Merida Initiative High-Level Consultative Group. (98) While media attention focused on the sensational daylight assassinations and the fear that the killings could represent an escalation in the drug war,99 the two governments set forth a strategic vision for advancing new opportunities and areas of cooperation. The vision calls for actions in four strategic areas:

(1) Disruption of the capacity of criminal organizations that act in both countries, through the systematic weakening of their operational, logistical and financial structures and capabilities;

(2) Mutual support for the continuous improvement of the framework for security and justice, and the strengthening of public institutions in both countries that are responsible for combating organized crime, including the promotion of the full observance of human rights and active civil society participation;

(3) Development of a secure and competitive border for the 21st century, based on a bilateral and comprehensive approach, that increases our global competitiveness through efficient and secure flows of legitimate commerce and travel while ensuring citizen safety and disrupting the illicit trade of drugs, weapons, bulk cash and other goods; and

(4) Building strong and resilient communities which includes supporting efforts to address the root causes of crime and violence, promote the culture of legality, reduce illicit drug use, promote a broader perception of the links between drug use and crime and violence, and stem the flow of potential recruits for the cartels by promoting constructive, legal alternatives for young people. (100)

For the most part, the joint strategy is a simple continuation of law enforcement activities, but the fourth strategic goal--a concentrated effort to promote constructive and legal alternatives for young people--is interesting. Between the international financial crisis and the emphasis in the United States on constructing border barriers and ending the underground economy for counterfeit goods, most of the legal alternatives for young people have been cut off. Meanwhile, the development of a secure and competitive border by the United States has mostly been an effort to choke the entry of illegal aliens, drugs, and other contraband. Despite the greater danger they pose, the United States for many years has also given mere lip service to cutting the flow of arms across the border. The United States sat on the sidelines while the U.N. small arms treaty was considered and the Obama Administration, not wanting to further alienate conservatives, has taken no strong initiatives against the sale and transfer of arms.

The improvement of the framework for security and justice and the strengthening of public institutions in both countries is useful. However, the real problem is the absence of strong regional frameworks and institutions for criminal justice and law enforcement. The U.S. government has never prioritized working with, or creating, multilateral institutions. Instead, it has created ad hoc bilateral law enforcement working groups without their own resources. They often lapse or merely limp along without an institutional memory and without civil servants with allegiance and loyalty to the institutions. At present, judicial and law enforcement authorities on the U.S. border cannot solve the problems of young Mexicans detained for illegal immigration or drug crimes without working with their counterparts on the other side of the border. There are no joint approaches or institutions to these problems. Transnational organized crime families, meanwhile, have as much staying power as ever before. They are more adaptive to changes in commerce and laws than governments, which are mainly reactive.

One compelling initiative is the Mexican government's request that the United States share information on payments made to persons with Mexican addresses. More specifically, Mexico is seeking information that the United States shares with Canada and that Canada already shares with Mexico. Unfortunately, the request remains pending with the U.S. Treasury. When pressed, U.S. Treasury officials only say that it is a delicate situation and the request is under consideration.

Much of the international enforcement cooperation and criminal justice harmonization in the Western Hemisphere takes place under the auspices of the Organization of American States (OAS) rather than NAFTA. Within the OAS, the Inter-American Judicial Committee (IAJC) undertakes much of the legal advisory work. The IAJC, which is the OAS' advisory body on juridical matters, promotes the progressive development and codification of international law and studies juridical problems related to the integration of regional developing countries. (101)

Since 1997, the OAS has also convened regular meetings of Americas' ministers of justice and attorneys general (Reunion Extraordinaria de los Ministros de Justicia de las Americas, or REMJA). These meetings provide a forum for wide-ranging discussions on all aspects of international enforcement cooperation and criminal justice in the region, often presaging more dynamic regional cooperation on criminal matters. (102) REMJA has focused on individual crime issues, such as cyber crime, prison and penitentiary policy, the training of judges, prosecutors, and judicial officers, improving international criminal cooperation. (103) REMJA has also promoted law enforcement cooperation throughout the hemisphere. Since REMJA's inception, OAS members have ratified and begun to implement universal and regional international cooperation instruments. Many REMJA members have, for example, participated in its information exchange network. (104)

Although REMJA exists "within the OAS framework," it is not, strictly speaking, an organic body or an agency of the OAS like other bodies concerned with international criminal and enforcement cooperation such as CICAD or the Inter-American Committee Against Terrorism (CICTE). (105) REMJA is neither a standing OAS agency nor a treaty-based structure. (106) As a result, its viability is wholly dependent on OAS institutions such as the Permanent Council. (107) The Council drafts and approves REMJA's agenda, promotes, and tracks its conclusions and recommendations, and directs and observes its components. (108) Looking toward the future, REMJA's continued dynamism would seem to require a firmer legal basis and adequate staffing and funding. (109) The success of the various REMJA initiatives also depends on countries deciding to support them, much as Canada has done with REMJA's information exchange network. (110)

Mexico and the United States ought to consider establishing additional bilateral and regional enforcement mechanisms. In doing so, they should review, on a bilateral basis, the mechanisms established in the Nordic countries that cut across Parliamentarians, criminologists, and ministers responsible for justice. The establishment of a Committee on the Americas' Crime Problem, emulating the European Committee on Crime Problems, would be a bold and welcome step. (111) The Committee would meet regularly at a sub-ministerial level to consider all types of crime and propose solutions, including treaties, model legislation, regulations, and other criminal justice means. More likely, the Committee would be established under an existing regional institution like the OAS. Regardless, unless the U.S. government takes a comprehensive approach to criminal justice in the Americas, non-territorial actors, such as narco-terrorists and other organized criminals, will continue to identify and exploit the gaps in the American criminal cooperation regime. (112)



U.S. jurisprudence has been impacted by human rights courts even though the United States has decided not to join the only regional human rights court in the hemisphere: the Inter-American Human Rights Court. Instead, the United States participates only in the Inter-American Human Rights Commission. When decisions in the Commission go against the it--as happened with regard to capital punishment--the United States often chooses to not to recognize them, thereby diminishing their legal impact. During the Administration of George W. Bush, the jurisprudence on humanitarian law was further minimized by the decision of the U.S. government to un-sign the Rome Statute on the International Criminal Court and the enactment of the American Servicemen's Protection Act (ASPA), which was openly hostile to it.

The Obama Administration has since expressed a commitment to "living our values by respecting the rule of law," (113) presumably by imposing constraints on U.S. government action and "following universal standards, not double standards." (114) Secretary of State Hilary Clinton has further stated that "a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves." (115)

But international human rights jurisprudence has not generally received an open and warm reception by high-level officials during the United States' so-called War on Terror. (116) Despite setbacks, however, U.S. courts have continued to serve as a forum for victims to raise and adjudicate alleged breaches of international human rights by high-level foreign officials and nations. As a result, and despite the continued hostility to international human rights jurisprudence within the executive and legislative branches, the United States has proven to be a favorable jurisdiction to bring and prosecute claims against foreign governments and foreign officials, particularly when the U.S. government has not been a co-participant in the alleged violations.


During the Bush Administration, there was much debate about the means to combat terrorism and the need to work on the so-called "dark side," as then-Vice President Dick Cheney said in a television interview. (117) As such, the investigations of incidents, such as the torture in Iraq at Abu Ghraib, were limited primarily to lower-ranking officials accused of the wrongdoing. (118) By contrast, the Obama Administration claims it "is firmly committed to complying with all applicable law, including the laws of war, in all aspects of these ongoing armed conflicts." 119 Under such laws, each nationstate is obliged to search for, bring into custody, and initiate prosecution or extradition of all persons within its territory or control who are reasonably accused of having committed war crimes like torture. (120) On February 19, 2010, the Obama Justice Department released a long-awaited watchdog report--the Margolis report--on the Bush administration's legal counsel who authorized the now-infamous "torture memos." (121) However, in a move destined to anger critics of the past administration's conduct, the official in charge of the investigation overruled a previous finding of misconduct, thereby exonerating the lawyers under examination. (122) The nearly 70-page report concludes that John Yoo and Jay Bybee were not guilty of any "professional misconduct" in writing the memos that recommended "enhanced interrogation techniques;" rather, Yoo and Bybee merely used "poor judgment" in their issuing of the torture memos. (123) The Margolis report reviewed the OPR's criticism of how the authors of the terror memoranda interpreted some of the European Court of Human Rights decisions (124) and demonstrated that, notwithstanding the new Obama Administration's policies to change U.S. interrogation policies, there is still limited accountability in the United States for likely violations of international law.

International law requires investigation and punishment of high-level officials who participate in torture and/or cruel and inhumane treatment. Punishment is required to prevent future administrations from repeating such actions. A serious argument can be made that, notwithstanding the various and low-level military prosecutions, the United States has not fulfilled its responsibility to investigate and prosecute the persons involved in such crimes.


1. The Debate about Using Foreign and International Law Precedents

Occasionally U.S. courts use foreign and international human rights court precedents to decide cases. In Lawrence v. Texas, (125) Justice Kennedy partially relied upon precedent set by the European Court of Human Rights to strike down a Texas sodomy law. (126) Certainly precedents set by foreign courts of law--especially those beyond its borders--do not bind the U.S Supreme Court.

One critic of the use of foreign and international precedents in the United States, Seventh Circuit Court of Appeals Judge Richard Posner, commented: "To cite foreign law as authority is to flirt with the discredited ... idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." (127) Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. (128) Additionally, he and other critics believe U.S. judges do not even fully understand the language in which laws and judgments, outside the common law realm, are written. (129)

In the 2003-2004 term, foreign and international legal sources were again significant in several decisions. These included, most notably, two June 2004 decisions in cases arising out of the War on Terror. One, Hamdi v. Rumsfeld, (130) concerned a U.S. citizen who was held incommunicado in a Navy brig pursuant to an executive decree declaring him an "enemy combatant." (131) Ruling some six months before the Law Lords' decision in the 2004 case, A v. Sec'y of State for the Home Dep't, (132) the Court held, 8-to-1, that the petitioner, who was being held indefinitely, was entitled to a "meaningful opportunity" to contest the factual basis for his detention before an impartial adjudicator. (133) Even in "our most challenging and uncertain moments" when "our Nation's commitment to due process is most severely tested," Justice O'Connor wrote for a four-Justice plurality, "we must preserve our commitment at home to the principles for which we fight abroad." (134) "[H]istory and common sense," she reminded, "teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse." (135)

Notwithstanding the reliance by some U.S. Supreme Court justices on foreign and international law precedents, other justices, namely Justices Scalia and Thomas, have not been receptive to such precedents. (136) Hence, there seems to be a split in the U.S. Supreme Court and the U.S. judiciary in general about the utility of relying upon foreign and international law sources. (137)

2. Prosecuting Terrorists After 9/11

Since 9/11, it has been a point of controversy in the United States whether to prosecute terrorists and, if so, the proper forum in which to do so. The Obama Administration has taken the position that, "the [United States] has a national security interest in trying terrorists, either before Article III courts or military commissions, and in keeping the number of individuals detained under the laws of war low." (138)

President Obama himself has criticized the Bush Administration's prosecution policy, observing that for over seven years, the U.S. government detained hundreds of people at Guantanamo. (139) During that time, the system of military commissions at Guantanamo only convicted three suspected terrorists. (140) As President Obama observed: "[I]nstead of bringing terrorists to justice, efforts at prosecution met setback after setback, cases lingered on, and in 2006 the Supreme Court invalidated the entire system." (141) Indeed, the inability to try detainees combined with the conditions of detention caused much controversy and criticism of the United States from its closest allies and adversaries alike. In fact, a number of terrorist groups kidnapped Americans and dressed them in orange suits emulating the ones at GIMTO and mimicked U.S. treatment of GITMO detainees in a propaganda battle. (142)

The Obama Administration has said that the choice between Article III courts and military commissions must be made on a case-by-case basis, depending on the facts of each individual case. (143) The Obama Administration has noted that the Bush Administration successfully prosecuted Richard Reid, Zacarias Moussaoui, and other cases in Article III courts. "For cases involving detainees who violate the laws of war," however, President Obama has argued that "they are best tried through military commissions." (144) Military commissions, Obama argues, "allow for the protection of sensitive sources and methods of intelligence gathering; as well as for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts." (145) Obama explains further that he opposed the Bush Administration's use of military tribunals only because, "[they] failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal." (146) In 2009, Congress amended the Military Commissions Act, making important changes with respect to these defects. In particular, a provision was added that makes inadmissible any statements taken as a result of cruel, inhuman or degrading treatment. (147) The 2009 changes also require the government to disclose more potentially exculpatory information, restrict hearsay evidence, and require that statements of the accused be admitted only if they were provided voluntarily, (148) although it does contain a carefully crafted exception for battlefield statements. (149)

3. Analysis

This revised prosecutorial policy on counter-terrorism cases will provide more credibility to the United States and help revive its standing as a country that supports the rule of law. They may also help the United States to secure extradition in national security cases where, increasingly, suspects have been able to delay or defeat extradition on the basis that they may never be tried before civilian courts, a circumstance that typically bars extradition. (150) Nonetheless, enormous controversies still exist among members of Congress with respect to the appropriate forum for prosecuting individuals.

D. The Investigation of Non-Accidental Death and Life Threatening Injuries Suffered by Detainees in Police or Military Custody at Home and Abroad


U.S. courts have regularly entertained cases concerning death and life-threatening injuries suffered by detainees in police or military custody abroad. For instance, at the time of this writing, the U.S. Supreme Court is considering the case of Samantar v. Yousuf. (151) The key issue is whether Fairfax, Virginia resident and former Somali Defense Minister Mohammed Ali Samantar can be held accountable under the Torture Victim Protection Act (TVPA), or whether he is immune from civil suit in the United States for human rights abuses committed in Somalia under the Foreign Sovereign Immunities Act (FSIA). The TVPA, passed by Congress in 1991, provides that the United States will not be a safe haven for perpetrators of the worst human rights abuses and that foreign governments accused of torturing and killing will be held accountable for their actions in U.S. courts. (152) In 2006, a district judge ruled that Samantar, as a government official, had immunity under the FSIA and dismissed the lawsuit. (153) The U.S. Court of Appeals for the Fourth Circuit overturned that decision, however, ruling that sovereign immunity only applies to foreign states, not individuals. (154) Samantar's appeal to the Supreme Court (155) could set a major precedent for trying government officials--perhaps even our own officials--for war crimes.

Another important tool is the Alien Tort Statute (ATS), a U.S. federal law first adopted in 1789 that provides federal courts with jurisdiction to hear lawsuits filed by non-U.S. citizens for torts committed in violation of international law. (156) When the ATS was enacted in the 18th century, international law dealt primarily with regulating diplomatic relations between States and outlawing crimes such as piracy. (157) International law in the 21st century, however, has expanded to include the protection of human rights. (158) Consequently, the ATS has gained renewed significance. Today, it gives survivors of egregious human rights abuses, wherever committed, the right to sue the perpetrators in the United States. (159) Since 1980, the ATS has been used successfully in cases involving torture, state-sponsored sexual violence, extrajudicial killing, crimes against humanity, war crimes, and arbitrary detention. (160)

The first case brought under the ATS for human rights abuses was Filartiga v. Pena-Irala. (161) Dolly Fitartiga and her younger brother Joelito lived in Asuncion, Paraguay, with their mother and father, Dr. Joel Filartiga, a well-known physician, painter, and opponent of Latin America's "most durable dictator," General Alfredo Stroessner. (162) In 1976, seventeen year-old Joelito was abducted and later tortured to death by Americo Norberto Pena-Irala, the inspector general in the Department of Investigation for the Police of Asunsion. (163) Dolly Filartiga was forced out of her house in the middle of the night to view her brother's mutilated body. (164) Although the district court initially stayed Pena's deportation, it ultimately granted Pena's motion to dismiss the complaint and allowed his return to Paraguay, ruling that, although the proscription of torture had become "a norm of customary international law," the court was bound to follow appellate precedents that narrowly limited the function of international law only to relations between states. (165) On appeal, the Second Circuit Court of Appeals reversed, recognizing that foreign nationals who are victims of international human rights violations may sue the malefactors in federal court for civil redress, even for acts that occurred abroad, so long as the court has personal jurisdiction over the defendant. (166) The court thus ruled that freedom from torture is guaranteed under customary international law. (167)

Since Filartiga, many ATS cases have been filed against individual perpetrators found in the United States. These cases are filed here in the United States because the ATS provides survivors of human rights abuses a unique opportunity to obtain justice when it is unavailable in their home countries. For instance, for countries emerging from armed conflicts or authoritarian regimes, impunity for human rights violations can be an unfortunate fact of life. In other cases, compromised judicial systems or amnesty laws actively prevent the prosecution of these crimes, (168) or those who committed atrocities may still hold power. Another factor is that the perpetrators may have fled the country. It is estimated that 1,000 human rights abusers have found safe haven in the United States. (169) For refugees and survivors trying to rebuild their lives here in the United States, seeing their abusers living with impunity can be profoundly traumatic. The ATS provides a tool to expose these human rights abusers and deny them safe haven.


Victims who have tried to sue the U.S. government for alleged international human rights abuses have not fared well.

a. Allegations of Abuse

Up to November 2009, allegations of detainee mistreatment at U.S. facilities in Afghanistan continued, raising questions about the extent to which President Obama has fulfilled his promises to end the harsh interrogation practices authorized by the Bush Administration after the September 11, 2001, attacks. (170) Two Afghan teenagers, Issa Mohammad, seventeen, and Abdul Rashid, allegedly younger than sixteen, claim that they "were beaten by U.S. guards, photographed naked, deprived of sleep and held in solitary confinement in concrete cells for at least two weeks while undergoing interrogation each day" about their suspected connections with the Taliban. (171) Their allegations are consistent with the accounts of two other former detainees, who have made claims of similar mistreatment. (172)

One clear international law violation is that, at the time of this writing, representatives of the International Committee of the Red Cross (ICRC) have not obtained access to the detainees at the facility in which Issa Mohammad and Abdul Rashid were imprisoned. (173) The detention center has operated under the provisions of an Executive Order that President Obama signed soon after taking office, which brought the closure of secret prisons operated by the CIA, but did not affect those operated by U.S. Special Operations Forces. (174) In early 2008, U.S. military officials acknowledged receiving a confidential complaint from the ICRC that the military was holding some detainees incommunicado. In August 2009, the U.S. military said it had started informing the Red Cross of the names of all detainees, including those held in the Special Operations camps, within two weeks of capture. However, the U.S. military still does not permit the ICRC in-person access to the detainees. (175)

There are 700 detainees held at the larger Bagram detention center, where most are held in cages accommodating about twenty men each. These cages have become notorious in Afghanistan as a symbol of abuse. Detainees are held without charge, sometimes for several years, and are denied access to counsel. Two detainees even died there in 2002 after receiving beatings by U.S. soldiers. At the end of 2009, detainees at Bagram were scheduled for transfer to a new $60 million detention center designed to provide better living conditions and to prepare detainees to re-enter society. (176) It boasts several humanitarian improvements including rooms for family visits, vocational classes, recreational areas and medical checkups. This center also provides detainees natural light, access to regular hearings with an appointed U.S. military representative, as well as a mattress, two blankets, a prayer rug, a prayer cap, and a Koran. (177) It is unclear, however whether this transfer of prisoners to the new detention center has been fully realized. In January 2010, Afghan officials agreed to take over responsibility for Bagram, but the White House announced in March 2010 that it was considering holding international terrorism suspects at Bagram.

The continued allegations of abuse illustrate the tension between President Obama's goal improving the detention conditions that existed under the Bush Administration and his stated desire to give military commanders leeway to operate. (178) A Defense Department spokesman, Bryan Whitman, recently said the "military routinely sought to verify allegations of detainee abuse." (179) Nevertheless, it remains to be seen whether the U.S. military has actually investigated the allegations, and, if confirmed, will punish the violators and act to rectify the mistreatment. The stakes are high: one of the reasons that Canada, a key U.S. ally, is withdrawing its troops is because of pressure from members of the Canadian Parliament who contend that the Canadian military is illegally contributing to international human rights abuses. (180)

b. Silencing Allegations of Torture at Guantanamo

On December 14, 2009, the U.S. Supreme Court denied certiorari to a petition requesting that the Court to revive a lawsuit against former Defense Secretary Donald Rumsfeld and other military leaders by four British nationals who allege that they were tortured during their detention at Guantanamo Bay. (181) The Supreme Court's left standing a lower court ruling precluding a suit against U.S. officials. The plaintiffs, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith allege that they were beaten, stripped, threatened by dogs, deprived of adequate food, water, and sleep, and exposed to extremely uncomfortable temperatures. (182) Each of the plaintiffs was detained in Afghanistan or Pakistan, held for more than two years at Guantanamo, and then released in 2004 and returned to England. (183) Each plaintiff sought $10 million in compensatory damages. (184) The plaintiffs based their claims on the Fifth and Eighth Amendments to the U.S. Constitution, the Geneva Conventions, and several federal statutes. (185)

The Supreme Court's denial is the end to a long odyssey for the four. Previously, the U.S. Court of Appeals for the District of Columbia dismissed their suit--twice. (186) In 2008, the court held that they have no rights under the Constitution and do not count as "persons" for purposes of the Religious Freedom Restoration Act. (187) Initially, the Supreme Court ordered the D.C. Court of Appeals to reconsider these decisions in light of its 2008 decision in Boumediene v. Bush (188), which held that Guantanamo prisoners had the right to file habeas corpus petitions seeking relief. (189) The court, however, dismissed the case again in April 2009. (190) In doing so, the D.C. Circuit repeated its view that the Constitution does not prohibit torture of detainees at Guantanamo and that detainees are not "persons" protected from religious abuse. (191) Additionally, the court held that so-called "qualified immunity" protected the defendants in the case because the right not to be tortured was not clearly established. (192) This ruling was based upon a Supreme Court doctrine requiring that the rights that have been allegedly violated be "clearly established at the time of the alleged violations." (193)

The plaintiffs petition reached the U.S. Supreme Court on the same day that Attorney General Eric Holder, Jr., said that he was ordering a preliminary inquiry "into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations." (194) Supporters of the Obama Administration are sorely disappointed that despite being elected, arguably, on the promises of ending torture and standing up for the "rule of law," it has now decided to argue that it has not been clearly established that torture was illegal at the time the detainees were held at Guantanamo (between 2002 and 2004). This is especially so as the law speaks unambiguously to the contrary: torture and cruel and inhuman treatment are recognized as part of the laws of war, and have been incorporated by reference into legislation so that they are also federal crimes. (195)

The U.S. Court of Appeals decision and the Supreme Court's failure to grant certiorari is a setback for the assumption that post-World War II international law has provided increased status and role for the individual. It also represents a setback to victims of U.S. human rights violations who now have no access to a U.S. forum in which to adjudicate their claims. (196) The decisions of the U.S. Court of Appeals and the denial of certiorari also raise the issue of whether the U.S. government has complied with Article 14(1) of the Convention against Torture, which requires states parties to ensure in their legal systems that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation. (197)

Also, U.S. compliance with Articles 2(3)(a) and (b) of the International Covenant on Civil and Political Rights (ICCPR) is in question. (198) Article 2(1) of the ICCPR provides that each state party to the ICCPR undertakes:

(a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy. (199)

An alleged victim of a violation of the ICCPR must have a right to have his or her claim determined by a competent authority of the respective state, i.e., a right to a decision by a competent authority as to whether a right guaranteed in the Covenant was violated. (200) Arguably, the U.S. courts evaded such a determination. The issue is of great importance because, under pressure from the U.S. government, European allies such as Belgium and Spain have changed their universal jurisdiction principles and laws with respect to humanitarian and human rights violations against U.S. officials--including former Secretary of Defense Donald Rumsfeld--on the basis that such allegations are best adjudicated in the United States. (201) The increasing number of decisions depriving victims of alleged U.S. torture, kidnapping, or illegal rendition will, however, make it politically and morally difficult for judiciaries, legislatures, and executives to deprive victims of torture and other human rights violations access to domestic and international forum on the basis that they will have access to U.S. courts. The decisions could be seen, therefore, as strengthening the argument for an international enforcement mechanism free of such domestic meddling.

c. Second Circuit Decision Affirms Dismissal of Arar Claims of Abuses Due to Extraordinary Rendition to Syria

On November 2, 2009, the Second Circuit Court of Appeals affirmed en banc a District Court's dismissal of claims arising out of alleged extraordinary rendition. (202) Maher Arar, the alleged victim, had filed a tort claim against individual members of the U.S. government who were allegedly involved with stopping Arar at a New York airport in 2002, after which he was transport to Syria and interrogated under torture. (203) Arar, a dual national of Syria and Canada, was suspected of terrorist activities on the basis of information issued by the Canadian government--later determined to be faulty--and for which Arar had already received $10 million in compensation from Canada. (204) Justice Jacobs, writing for the majority, reviewed the case primarily with respect to Arar's claims under the TVPA, and considered whether the executive policy of rendition constituted conspiracy to torture in violation of the Constitution's due process guarantees. (205) The court determined that the TVPA required a showing that the defendants had acted under color of Syrian law to exercise the torture and interrogation. (206) Arar made no showing that the defendants did so, and the court thus affirmed dismissal of the claim. (207) In so holding, however, the court said that Congress should create an appropriate remedy. (208) Justices Sack, Parker, Pooler and Calabresi each wrote dissenting opinions. (209) The four dissenters rejected the dismissal, arguing that the damages arising out of Arar's rendition were actionable, and fashioned a remedy for abuses arising out of extraordinary rendition. (210) Justice Sack argued that the majority unduly dismissed the liability of the defendants for their conduct in the United States--events he considered distinct from the treatment of Arar in Syria. (211)

The Arar decision does not bode well for plaintiffs or for the U.S. government. Plaintiffs seeking accountability for their suffering have had yet another door closed to them while the government, in trying to persuade foreign and international courts to decline jurisdiction, will have the difficult task of convincing others that the United States is still a viable forum for adjudication of human rights claims.

E. Extradition to States Where There is Evidence of Systemic Human Rights Violations

The United States is a contradiction when it comes to the enforcement of human rights. On the one hand, the United States does not permit extradition to countries, such as Russia, that it believes have serious human rights problems. (212) Similarly, the United States has not ratified the Rome Statute of the International Criminal Court because of concerns that the process may endanger the human rights of Americans and persons working for the U.S. government during military operations. (213) The American Servicemen's Protection Act actually precludes the U.S. government from surrendering persons to the International Criminal Court. (214) On the other hand, in its counter-terrorism campaign, the United States has regularly handed over detainees who were sometimes kidnapped or irregularly seized and transferred to countries with poor records on international human rights, and despite evidence that the detainees would be subjected to torture or cruel and inhumane treatment.

One such detainee was Ahmen Hussein Mustafa Kamil Agiza. On May 20, 2005, the Office of the U.N. High Commissioner for Human Rights' Committee Against Torture opined that Sweden's expulsion of Agiza on behalf of the U.S. intelligence agencies violated portions of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Agiza was "removed from Sweden to Egypt despite his claims that he would be tortured there." (215)

Other casualties of the United States' double standard are Mustafa Osama Nasr, also known as Abu Omar, who was kidnapped by U.S. intelligence operatives and rendered to Egypt, and Maher Arar, who was detained at JFK Airport en route to his home in Canada and then rendered to Syria. (216) As a result these cases and others that evidence of the United States' abusive treatment of persons detained and irregularly rendered for counter-terrorism matters, some courts no longer give U.S. extradition requests the benefit of the doubt.

F. The Obama Administration Issues Four Executive Orders on Detention and Interrogation

On January 22, 2009, his second day as President, Barack Obama issued four Executive Orders: the first ordered the closing of the Guantanamo Bay Detention Center; the second was a review of detention policy options; the third concerned interrogation tactics; and the fourth dealt with the detention of persons classified as "enemy combatants." Together, these four Executive Orders evidence enormous changes in U.S. counter-terrorism policy. The Obama Administration's Legal Advisor, Harold Koh, has explained that he personally--along with the Administration as a whole--spent significant time during the first year of the Administration trying to revise detention practices so as to ensure full compliance with domestic and international law. The administration planned to accomplish this "first, by unequivocally guaranteeing human treatment for all individuals in U.S. custody as a result of armed conflict and second, by ensuring that all detained individuals are being held pursuant to lawful authorities." (217)

1. Closure of The Guantanamo Bay Naval Base and Detention Facilities

Executive Order 13492 (E.O. 13492) is designed to promptly close detention facilities at Guantanamo, consistent with the national security and foreign policy interests of the United States. (218) It recites as findings that some individuals now detained at Guantanamo have been there for over six years, and most for at least four years, which raises significant concerns. (219) The findings call for prompt and appropriate disposition of the individuals and the closure of the facilities in order to further both the national security and foreign policy interests of the United States and the interests of justice. (220) The Executive Order also calls for the executive branch to conduct a "prompt and thorough review of the circumstances of the individuals currently detained at Guantanamo who have been charged with offenses" before military commissions pursuant to the Military Commissions Act of 2006, as well as of the military commission process more generally. (221)

EO 13492 required that the closure of the detention facilities at Guantanamo and the disposition of the individuals covered by the order occur as soon as is practicable, and no later than one year from January 22, 2009. (222) Any individuals covered by the order remaining in detention at the time of the closure are to be returned to their home country, released, transferred to a third country, or transferred to another U.S. detention facility in a way consistent with U.S. law and U.S. national security and foreign policy interests. (223)

The EO also calls for an immediate review of the status of each individual now detained at Guantanamo by an inter-agency group, which includes the Attorney General, the Secretaries of Defense, State, and Homeland Security, the Directory of National Intelligence, and the Chairman of the Joint Chiefs of Staff. (224) The EO provides standards for determining whether to transfer, prosecute, or otherwise dispose of the detainees. (225) The EO calls for the Secretary of State to "expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement the order." (226)

And, lastly, the EO directs that detainees be treated humanely and in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. (227) The Secretary of Defense was thus tasked with immediately undertaking a review of the detention conditions to ensure full compliance, completing the review within 30 days, and immediately implementing any necessary corrections. (228) Additionally, the Secretary of Defense was ordered to halt all proceedings pending in the U.S. Court of Military Commission Review and to refrain from referring or bringing any new charges. (229)

2. Review of Detention Policy Options

Executive Order 13493 (EO 13493) establishes a special interagency task force to identify "lawful options ... available to the U.S. government concerning the arrest, detention, trial, transfer, release, or other disposition of individuals captured or arrested in connection with armed conflicts and counterterrorism operations." (230) Additionally, the task force must "identify such options as are consistent with the national security and foreign policy interests of the [United States] and the interests of justice." (231)

3. Ensuring Lawful Interrogations and Treatment

On his second full day in office, President Obama unequivocally forbade the use of torture as an instrument of U.S. policy and directed that executive officials could no longer use the Yoo and Bybee opinions that allowed practices many consider to be torture and cruel and inhumane treatment. (232) Executive Order 13491 (E.O. 13491) has the goals of "improve[ing] the effectiveness of human intelligence gathering, promoting the safe, lawful, and humane treatment of individuals in U.S. custody and of U.S. personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the [United States] are faithfully executed." (233) EO 13491 revokes E.O. 13440 of July 20, 2007, and all Executive Orders between September 11, 2001, to Jan 20, 2009, inconsistent with the order that concern detention or interrogation of detained individuals. (234)

EO 13491 "sets standards and practices for interrogation of individuals in the custody or control of the United States in armed conflicts." (235) It requires that:
   [I]ndividuals detained in any armed conflict must in all
   circumstances be treated humanely and must not be subjected to
   violence to life and person (including murder of all kinds,
   mutilation, cruel treatment, and torture), nor to outrages upon
   personal dignity (including humiliating and degrading treatment),
   whenever such individuals are in the custody or under the effective
   control of an officer, employee, or other agent of the U.S.
   Government or detained within a facility owned, operated, or
   controlled by a department or agency of the U.S. (236)

EO 13491 thus prevents an individual in U.S. custody, or under effective control of a U.S. government official, or detained within a facility owned, operated, or controlled by a U.S. agency in any armed conflict from being subject to any interrogation technique, approach, or treatment that is not authorized by and listed in Army Field Manual on Human Intelligence Collector Operations. (237) In that regard, officers, employees and other agents of the U.S. government, in conducting interrogations, may not rely on any guidance or interpretation issued by the Justice Department between September 11, 2001, and January 20, 2009. (238)

The order also requires the C.I.A. to close as expeditiously as possible any detention facilities that it currently operates and forbids the operation of any such detention facility in the future. It requires all U.S. agencies to provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of a U.S. officer, employee or other agent. This deals with the problem of "ghost" detainees, people who were secretly seized and rendered to a detention facility. The alleged failure to allow the Red Cross to visit deprived the family of the detained from knowing and trying to resolve the detention.

Also, a Special Interagency Task Force is to study and evaluate U.S. interrogation practices and techniques in Army Field Manual 2 22.3 and the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other countries to face torture. The Special Task Force was ordered to report its findings to the President within 180 days, unless its Chair determines that an extension of time is required. (239) The Field Manual lists specific interrogation methods that must never be used, such as waterboarding, use of extreme cold, use of dogs, stripping persons naked, and hooding, as they are deemed tantamount to torture, cruel and inhumane treatment. These methods, authorized during the Bush Administration, were part of a well-documented "common unifying" plan to deny Geneva law protections. (240)

An interagency review of U.S. interrogation practices has since advised, with President Obama's agreement, that no techniques beyond those enumerated in the Army Field Manual or traditionally used by the FBI may be used to conduct interrogations. The Interrogation and Transfer Task Force has also made certain recommendations to help ensure that the United States will never again transfer individuals to other countries to face torture. (241)

4. Scope of Detention Policy

Substantial debate has raged over the legal basis for the United States continuing to detain persons for counter-terrorism purposes. Some have been arrested in the U.S. and held in military confinement, like Ali Saleh Kahlah al-Marri, while others have been held on Guantanamo or at Bagram. Harold Koh, speaking on behalf of the Obama Administration, has argued that the legal basis for the detentions derives firstly from the fact that the United States continues to fight a war of self-defense against an enemy that attacked it on--and even before--September 11, 2001, and that continues to attack. (242) Secondly, in Afghanistan, the United States is just one participant of the many countries operating with the consent of the Afghan government. Thirdly, also with respect to Afghanistan, the U.N. Security Council has adopted resolutions authorizing the use of "all necessary measures" by the NATO countries furnishing the International Security Assistance Force (ISAF) in order to fulfill their mandate in Afghanistan. The detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict and would thus clearly fall within the intended definition of "necessary measures." (243) And lastly, the Obama Administration relied upon the 2001 Authorization for Use of Military Force (AUMF), which is informed by the principles of the laws of war. (244)

Notably, in contrast to the Bush Administration, the Obama Administration has not based its claim of authority to detain persons at GITMO and Bagram on the President's Article II authority as Commander-in-Chief. Additionally, the Obama Administration has specifically stated that international law informs the scope of U.S. detention authority--a contention repeatedly rejected by his predecessor. Indeed, in its internal decisions about specific Guantanamo detainees and its arguments before the courts in habeas cases, the Obama Administration has derived the scope of its detention authority from Congress's passage of the AUMF and the laws of war. (245)

Despite this significant change in course, some commentators have criticized the Obama Administration's decision to continue the detentions of persons based on their membership in a non-state armed group rather than an official, uniformed army. The Administration has defended its position again by relying upon the AUMF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. The Administration bases its authority to detain not on conclusory labels like "enemy combatant," but on whether the factual record in the particular case meets the legal standard. (246) This standard considers, among other factors, whether an individual was part of al-Qaeda, Taliban forces, or associated forces, as demonstrated by evidence of formal or functional membership. Such evidence might include an oath of loyalty, training, or armed assistance of such enemy forces. (247) The Obama Administration has also claimed authority to detain persons who substantially supported these forces, or associated with forces that were involved in hostilities against the United States or its coalition partners. (248) The International Committee of the Red Cross continues to disagree with some of these factors, advocating instead that only individuals directly participating in hostilities should be subject to detention. (249)

Meanwhile, the Obama Administration is also moving to shift detention responsibilities to the local governments in Iraq and Afghanistan. In Afghanistan, the Administration is working with Afghan and U.S. military officials and representatives of the ICRC to implement new and more transparent procedures for detention review at Bagram, as well as closer cooperation with Afghanistan's detention operations. (250) John Bellinger, a former Legal Advisor of the Bush Administration, has characterized the change in law as mostly cosmetic, however. (251)

Therefore, the Obama Administration's apparent position is that a person who takes orders from an al-Qaeda or Taliban command is a member of one of those forces and can be detained. In addition, an Al-Qaeda member whose task is to house, feed or transport fighters may be detained as part of the enemy armed forces, regardless of his engagement in actual fighting. (252) The approach remains contrary to the ICRC's position that organized armed groups "consist only of individuals whose continuous function is to take a direct part in hostilities." (253) And, perhaps seeing an endgame in sight, the Administration is transferring responsibility for detentions away from the United States.

5. Review of the Detention of Ali Saleh Kahlah al-Marri

At the start of the Obama administration, a memorandum from Attorney General Holder directed that the United States expeditiously review disposition options with respect to Ali Saleh Kahlah al-Marri, the only individual the Department of Defense is currently holding as an enemy combatant within the territory of the United States. The memorandum was issued because EO 13492, which concerned the detainees at Guantanamo Bay, does not apply to him. (254)

In December 2008, before President Obama took office, the U.S. Supreme Court had granted certiorari to al-Marri in order to review the Fourth Circuit's holding that his indefinite detention was lawful. (255) On January 22, 2009, following the issuing of EO 13492, Acting Solicitor General Edwin Kneedler requested an extension to permit the government to resolve the matter in compliance with the new policy. Al-Marri consented to the extension and thereafter pled guilty to a lesser-included offense and was sentenced. (256) The Supreme Court was therefore deprived of the opportunity to consider whether indefinite detention on U.S. soil is lawful.

6. Analysis

The policy changes encapsulated in the EOs signal to the United States and the world that the Obama administration is nullifying and disregarding the much-derided detention and interrogation policies of the Bush Administration, and that the United States will be bound by the rule of law, especially international conventions. Many questions remain unresolved, however, including what the Administration should do with terrorists who cannot be tried in U.S. courts, either because evidence against them was gathered by torture or other illegal means, or because intelligence is too sensitive to use in courts. Another issue is whether some interrogation methods should be kept confidential in order to prevent Al Qaeda from training to resist them. And yet another concern is how the United States can ensure that prisoners transferred to other countries will not be tortured. (257)

The decision-making process with respect to the final disposition of the Guantanamo detainees is complicated. In addition to the substantial legal questions and domestic political concerns involved, there is also a lack of comprehensive case files on many of the detainees, and what information does exist is "scattered throughout the executive branch." Also, these files are of the type kept by intelligence officials, not prosecutors, and were not compiled with the intention of producing admissible evidence in court. (258) It is estimated that fifty to a hundred of the remaining Guantanamo inmates may face trials, making the process not only immeasurably difficult, but also enormous in size. (259)

With regard to the now-defunct Bush-era detainment and interrogation policies, some commentators are insistent that the Obama Administration follow "treaty-based and customary international legal obligations either to initiate prosecution of or to extradite all persons who are reasonably accused of having authorized, ordered, abetted, or perpetrated war crimes and/or crimes against humanity." (260) However, domestic politics will likely frustrate any such actions by the Administration. In the first months of Obama's presidency, for example, Senate approval of Attorney General Eric Holder was delayed by Republicans who wanted assurances that the Administration will not try to prosecute Bush Administration officials who have been accused of such offenses. (261) To date, and perhaps because of this pressure, no investigations or inquiries have been made. Nonetheless, the Obama Administration's effort to close Guantanamo are bound to force litigation on the issue as much of the evidence that will be presented against some of the detainees is tainted by alleged torture and would be challenged as inadmissible in court. (262)

Despite the endless complications, the Administration has announced that it intends to continue releasing detainees. Some will be transferred to willing third-party countries while the rest are to be transferred to a prison in Illinois. However, it remains to be seen if the Obama Administration will be able to obtain the Congressional funding and approval required for this plan. (263) Furthermore, many non-governmental organizations (NGOs) have taken issue with the Administration's plans, or lack thereof, for processing the detainees' cases. These NGOs have advocated for prosecutions in federal courts and are disappointed that military commissions and indefinite detention remain on the table. (264)

While the criticism from these NGOs do have merit, the Administration's adjustments to the military commission system would solve the most difficult aspect of the Bush era commissions--the authority to introduce tainted evidence at trial, especially statements obtained by alleged coercion, abuse, torture, and inhumane treatment. Of course, several other problems persist: the commissions still suffer from a lack of independence since the judges are military officers who report to superiors in the executive branch, and controversy remains about which offenses the commissions have jurisdiction over, especially with respect to acts that are not clearly war crimes or are not necessarily even criminal (or were not at the time they were committed). With respect to the later, for instance, a detainee who was a driver for a terrorist or who had some training at an al-Qaeda camp, even if they did not engage U.S. forces in Afghanistan, can be tried for giving material assistance to the enemy. (265) The procedural rules for military commissions are just now being developed so, compared to regular courts, even courts-martial proceedings, both of which have well-established procedures, the commissions system is an unknown and therefore potentially inferior system of justice. (266)

Regardless of the adjustments made, the Obama Administration's policy of continuing military commissions, detention without trial, and irregular rendition, also risks continuing the perception that the process is not fair. (267) Unless the Obama administration better adheres to its promises of embracing international human rights and the rule of law in its counter-terrorism policies, it will have difficulty keeping its allies engaged in Afghanistan. The administration needs to better balance U.S. domestic politics with the need to fulfill its promises in order to sustain multilateral respect and support for its military and enforcement policies. It is a difficult, if not impossible dance.


Another controversial counter-terrorism policy of both the Bush and Obama administrations is targeted, killings including lethal operations conducted with the use of unmanned aerial vehicles. Recently, Harold Koh--Legal Advisor to the U.S. Department of State--has defended U.S. targeting practices on the basis that they comply with all applicable law, including the laws of war. (268) The United States takes the position that it "is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law." (269) Additionally, "Congress authorized the use of all necessary and appropriate force through the 2001 Authorization of Use of Military Force (AUMF)." (270) Mr. Koh has said the Administration "has carefully reviewed the rules governing targeting operations to ensure that the operations are conducted consistently with the law of war principles." (271)

International law requires that the U.S. government meet several requirements in order to legally target civilian terror suspects abroad. First, the United States must determine that the target is engaged in armed conflict against it. Second, the United States must gain permission for the targeted killing from the target's host country' And, third, the use of deadly force must be a military necessity, meaning that there must be no reasonable alternative. (272) The problem with Mr. Koh's explanation is that the United States, in making reference to international law, could be applying either the law of armed conflict or the rules governing the right to self-defense--and these rules are very different. Mr. Koh did not clarify this ambiguity in his statement. (273)

The biggest controversy, however, concerns whether targeting provides adequate process or whether it constitutes unlawful extrajudicial killing. In an armed conflict, or in applying legitimate self-defense, Mr. Koh argues that the United States need not provide targets with legal process before the United States can use lethal force. He states that "[o]ur procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise." (274) Mr. Koh represents that the principles of distinction and proportionality are followed and implemented strictly both in the planning and execution stages to ensure that such operations are conducted in accordance with applicable law. (275) Philip Alston, the U.N. Special Rapporteur on extrajudicial execution, has called on the U.S. government to "provide information and assert its legal justification for its Predator strategy, with respect to both identification of targets and collateral damage," as evidence that its public claims are true. (276) The implied U.S. position, however, seems to be that the International Covenant on Civil and Political Rights--the human rights law that the special rapporteur cites as authority--does not cover extraterritorial activities in a conflict and that these human rights law concepts are superseded the laws of war, which has its own rules about targeting and collateral damage. (277)

It should be noted that the U.S. government actually operates two different drone programs. One is the publicly acknowledged, military program that operates in the recognized war zones of Afghanistan and Iraq. It targets the enemies of U.S. troops fighting and is, in that respect, an extension of conventional warfare. The second is a C.I.A. program targeting terror suspects around the world, including in countries where U.S. troops are not engaged in combat. This program is classified as covert. It was started by the Bush Administration and has been continued by his successor. Troublingly, the C.I.A. refuses to provide any information to the public about where it operates, how it selects targets, how it is managed, or how many people have been killed. (278) The lack of transparency immediately raises the question of whether this program, too, is subject to the same legal review process that Mr. Koh describes.

Of course, the controversies do not end there. The media and critics have reported that drone attacks occur daily and that many of the victims have been innocent bystanders, including children. Furthermore, civilians, both intelligence officers and private contractors, fly the Predators in the C.I.A. program. Because they are outside the traditional command structure, internal oversight and accountability is questionable. Moreover, many of the drones piloted by these civilians are used in Pakistan's tribal areas, which are largely forbidden territory for media organizations. Therefore, videos of drones attack are rare and only a few photographs of the deadly results have ever been published. The result is a lack of public accountability as well. (279)

The extensive secrecy and lack of accountability is a dangerous combination. It has, for example, already led to the abuse of targeting drone killings. The United States has added Taliban-supporting drug traffickers and other alleged criminals to its hit list. (280) Are these targets truly legitimate according to the laws of war? Additionally, as the use of drones has increased dramatically, the rise of casualties in these attacks raises the question of whether the attacks strictly follow proportionality principles and limit "collateral" civil deaths. (281)

But perhaps the biggest problem of the right to use assassination and lethal force against suspected terrorists in anticipatory self-defense is that, as the U.S. government continues to use it on a widespread basis, other countries like Israel, Russia, Iran, and China may employ drones and assassination as normal methods of warfare as well. If the U.S. government can use drones to target narcotics traffickers, then what is to stop the Colombian or Venezuelan governments from using drones against drug traffickers in their countries?

H. Intelligence Gathering and Prevention of Terrorism

One controversy between the United States and the European Union has been the interplay between international human rights, data privacy and counter-terrorism prevention. This has manifested itself in demands by the United States for information on passengers flying from the European Union to the United States, and also in U.S. requests to share banking information maintained by the Society for Worldwide Interbank Financial Transactions (SWIFT). (282)

On February 11, 2010, at a meeting in Strasbourg, France, the European Parliament (EP) voted 378 to 196 to reject an agreement between the United States and European Union that would have granted U.S. authorities nine months of access to a vast financial transactions database maintained by SWIFT, a single company that conducts almost all international bank transfers. (283) Data from SWIFT has been at the core of the U.S. Treasury's Terrorist Finance Tracking Program, established in the aftermath of the 9/11 attacks. Until January 2010, the U.S. Treasury had obtained the SWIFT data through administrative subpoenas. Thereafter, because SWIFT moved key computer servers outside the United States, the data could only be obtained through an agreement with the European Union or, alternatively, from the individual countries where the servers are located--the Netherlands and Switzerland. (284)

The controversy about the use of SWIFT data started in 2006 when the media reported that the U.S. Treasury Department had been secretly using SWIFT data for counter-terrorism purposes. (285) Subsequently, the U.S. government, including Secretary of State Hilary Clinton and Treasury Secretary Timothy Geithner, both contacted the European Parliament's President Jerzy Buzek to lobby for the approval of the formal data-sharing agreement, which was concluded in November 2009 but later rejected by the European Parliament. (286) U.S. officials say that the intelligence derived from the SWIFT data gives them insights into--and ultimately allows them to stop--terrorist plots. (287) Any interruption in the data sharing would cause a "security gap" that could setback counter-terrorism enforcement cooperation. (288)

As an alternative to an EU-wide deal, the United States could attempt to conclude a bilateral agreement with the Netherlands, which hosts the only SWIFT database in the European Union, or with Switzerland, which also hosts SWIFT servers. Such a deal would, however, provide far less data and could potentially hurt efforts to obtain a EU-wide agreement. (289) Reaching an agreement with the Dutch government is also problematic because the Netherlands, as members of the European Union, are subject to EU data privacy rights, which are fundamental under EU law. Similar problems exist in Switzerland. The Swiss government is in the midst of a controversy over efforts to implement an August 19, 2009 settlement agreement between UBS, a multinational Swiss bank, and the United States that would result in the turning over of UBS documents concerning U.S. taxpayers. According to two Swiss court decisions, the implementation of the agreement and the handing over of documents would contravene fundamental Swiss banking law.

The European Parliament's rejection of the interim agreement, timed as it was so soon after the Lisbon Treaty took effect, may be interpreted as an effort by the EP to ensure that its new, expanded powers are respected in practice. The Lisbon Treaty grants the EP the power, jointly with EU member governments, to handle the EU's legal affairs. The SWIFT vote is the first opportunity for them to demonstrate their new strength. (290) The EP members did, after all, display aggravation that the provisional agreement was agreed upon one day before the activation of the Lisbon Treaty, which gives the EP a larger role over data-protection issues as well. (291)

The failure of the EP to approve the new proposed agreement also illustrates the gap that exists between the EU and the United States on data privacy. In Europe, data privacy rights are fundamental law, whereas U.S. law provides no such fundamental, except where applicable under the First and Fourth Amendments to the Constitution.


The biggest challenge to peace, stability, and ending genocide, crimes against humanity, and war crimes will be empowering international institutions. As the International Tribunal for War Crimes in the Former Yugoslavia and Rwanda wind down, the main focus will be on the International Criminal Court (ICC). As the ICC has emerged, many of the major global powers, including the United States, China, and Russia, have opposed it. As of October 12, 2010, however, there are a total of 114 member countries. (292)

After serving as a leading proponent to the Rome Statute, and after President Clinton signed it, the United States under President George W. Bush backed out and supported the enactment and strengthening of the American Servicemen's Protection Act (ASPA). (293) The ASPA has provisions that prohibit the rendering of certain types of assistance to the ICC--like evidence gathering and extradition--and punishes states that refuse to sign Article 11 agreements with the United States that would likewise bind them not to surrender any persons who work for the U.S. government and are under investigation by the ICC. Notwithstanding this hostile stance, which was harshest in the first four years of the Bush Administration, the policy became more nuanced in the second term. The United States, for instance, abstained from the U.N. Security Council vote to request the ICC investigate atrocities in Darfur. (294)

The Obama Administration, for its part, has decided to engage more actively with the ICC. Its engagement meets with the Administration's generally more favorable approach and attitude toward international law, namely its four commitments to: (1) Principled Engagement; (2) Diplomacy as a Critical Element of Smart Power; (3) Strategic Multilateralism; and (4) the Notion that Living Our Values Makes Us Stronger and Safer, by Following Rules of Domestic and International Law; and Following Universal Standards, Not Double Standards. (295) In November 2009, Ambassador-at-Large for War Crimes and U.S. Legal Advisor Stephen Rapp also led an interagency delegation that resumed engagement with the ICC by attending a meeting of the ICC Assembly of States Parties (ASP) as an observer. It marked the first time that the United States had attended such a meeting. At the end of March 2010, the United States attended the ASP meeting when it resumed in New York. (296) Even as a non-State party and observer, the United States seems to believe that it can play an important role in advancing international justice. The Obama Administration is actively exploring ways that the United States can, consistent with U.S. law, assist the ICC in fulfilling its historic charge of providing justice throughout the entire world. (297)

The United States has continued to express concern, however, that if the ICC adopts a definition for the major international crime of aggression at this point in its history--a point that is strongly contested--it could divert the ICC from its core mission, potentially politicize the institution, and thereby hurt its stability and operability. The U.S. position is that investigations or prosecutions of the crime of aggression should not occur without a prior determination by the U.N. Security Council that aggression has occurred. The U.N. Charter specifically entrusts the Security Council with the responsibility to make that determination and the United States is concerned that widespread confusion might result if more than one international institution were legally authorized to make the same determination with respect to the same case, especially since these bodies, under the current proposal, would apply different definitions of aggression. (298)

Notwithstanding the improved dialogue between the ICC and the United States, and despite the statements of Harold Koh and other members of the Obama Administration who favor greater engagement with international law, there is still broad opposition to the ICC in the U.S. government, especially within the national security apparatus (the Defense Department and military-intelligence agencies). In some ways, this is a return to the status quo antebellum--the U.S. policy as it was at the end of the Clinton Administration and before the War on Terror. The motivation of its re-engagement, however, may be more out of self-interest than a pure belief in the efficacy of international law. The United States entrance into the debate surrounding the ICC's adoption of a definition for aggression is most likely the result of the realization that, as the world's lone superpower, the U.S. cannot permit authorities outside its jurisdiction to adjudicate allegations of the misuse of its military power; at least, not without first having its say.


Enormous interactions between international human rights law, criminal law, national security law, and other legal areas occur daily in the United States. The jurisprudence remains quite fluid, in part because the U.S. public is divided between the change of executive policies between the Bush and Obama Administrations, and in part because of the divergent policies between the United States, and other countries or international groups, such as the European Union. Clearly, the United States will try to negotiate solutions with the European Union and other international partners, and Congress and the public will continue to debate counter-terrorism policy. The policies, themselves, will continue to evolve as the decisions of the U.S. executive, legislative, and judiciary branches continue to grapple with the issues presented in this paper. In this ongoing debate, non-governmental organizations, including bar associations, will also continue to play important roles by providing independent oversight and serving as fora for continuing debates. (299)

As the United States and other governments use novel mechanisms such as private contractors and drones to wage war, they will eventually need to justify them within the framework international law. President Obama is somewhat caught at the moment: although he has in many aspects eliminated the "War on Terror," when it is convenient, his administration has employed the classification of warfare in order to justify some of their actions against so-called combatants.

Globalization, increased conflagrations, and genocides increase the need for more accountability, and thus for mechanisms to supplement national criminal justice systems. Much of the focus for

(1.) Portions of parts I and II of this article have been adapted from Bruce Zagaris et al., International Criminal Law: Cases and Materials 5-27 (3d ed. 2007) [hereinafter Zagaris, Int'l Criminal Law]; and Bruce Zagaris, International White Collar Crime: Cases and Materials, 1-16 (2010) [hereinafter Zagaris, White Collar Crime].

(2.) See United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, 32 U.S.T. 543, 1019 U.N.T.S. 175 [hereinafter Vienna Convention].

(3.) See United Nations Convention Against Transnational Organized Crime, Sept. 29, 2003, T.I.A.S. 13127, 2225 U.N.T.S. 209.

(4.) See Maximo Langer, Trends and Tensions in International Criminal Procedure: A Symposium, 14 UCLA J. Int'l L. & Foreign Aff. 1, 2 (2009) (discussing re-emergence of international criminal tribunals and accompanying procedures after end of Cold War); see, e.g., Kate Gibson & Daniella Rudy, A New Model of International Criminal Procedure?, 7 J. Int'l Crim. Just. 1005 (2009) (citing ECCC as model for international criminal procedure). The International Expert Framework on International Criminal Procedure is set to be published in early 2011 and will provide general principles and rules governing international criminal procedure due to its recent growth. International Criminal Procedure Expert Framework Towards the Codification of General Rules and Principles, ICP-EF (Oct. 26, 2010),

(5.) See John D. G. Waszak, The Obstacles to Suppressing Radical Islamic Terrorist Fiancing, 36 Case W. Res. J. Int'l L. J. 673, 681 (2004) (identifying FAFT's founding "with the purpose of ... prosecut[ing] laundering"); Daryl Shetterly, Starving the Terrorist of Funding: How the United States Treasury is Fighting the War on Terror, 18 Regent U. L. Rev. 327, 338 (2005) (noting states engagement of "numerous international fora" such as G8, G20, NAFTA, and Egmont Group to curb international crime).

(6.) See generally Bruce Zagaris, Developments in the Institutional Architecture and Framework of International Criminal and Enforcement Cooperation in the Western Hemisphere, 37 U. Miami Inter-Am. L. Rev. 421 (2006) (surveying several national institutions' impact on international criminal law).

(7.) See Bruce Zagaris, U.S. International Cooperation Against Transnational Organized Crime, 44 Wayne L. Rev. 1401, 1402-5 (1998) (summarizing U.S. measures taken to combat emerging trends in transnational crime); see also Herve boullanger, la criminalite economique en europe [economic crime in Europe] 35-46 (2002).

(8.) North American Free Trade Agreement, arts. 501-514, 1701-1721, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993) [hereinafter NAFTA].

(9.) Zagaris, Int'l Criminal Law, supra note 1, at 2.

(10.) Id.

(11.) See generally Gray Area Phenomena: Confronting the New World Disorder (Max G. Manwaring, ed.) (1993) (discussing "gray area phenomena" whereby terrorists and criminals use locations outside effective government control to hide and operate enterprises).

(12.) See, e.g., Peter A. Lupsha, Transnational Organized Crime Versus the Nation-State, in 2 Transnational Organized Crime 21-48 (1996).

(13.) See, e.g., Interviews with Public Officials, Trends in Org. Crime, March 1996, at 5, 6-7 (1996) (interviewing Richard A. Clarke, Special Assistant to the President and Senior Director for Global Issues and Multinational Affairs at National Security Council, regarding U.S. government stance on transnational organized crime).

(14.) See, e.g., John Kerry, The New War: The Web of Crime that Threatens America's Security, 31 (1997) (noting out-of-date legal instruments).

(15.) See President William Jefferson Clinton, Remarks to the United Nations General Assembly on the Occasion of the 50th Anniversary of the Creation of the United Nations (Oct. 22, 1995), in Federal News Service, Oct. 22, 1995. President Clinton used the occasion to announce a number of new initiatives against transnational organized crime, including the extension of economic sanctions against certain Colombian narcotics trafficking organizations. Id.; see also, e.g., Exec. Order No. 12,978, 60 Fed. Reg. 54,579 (Oct. 24, 1995). For the text of President Directive 42 on transnational crime, see White House, U.S. Initiatives Against International Organized Crime, White House Fact Sheet (Oct. 22, 1995).

(16.) See generally Convention on Cybercrime, Council of Europe, (Nov. 23, 2001),

(17.) General Agreement on Tariffs and Trade, opened for signature Oct. 30, 1947, 61 Stat. A3, 55 U.N.T.S. 187 [hereinafter GATT]; Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, GATT Doc.MTN.TNL/W/FA (Dec. 20. 1991), Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (Annex III).

(18.) Nate Anderson, What the MPAA Wants from Obama: 3 Strikes, Canada Crackdown (Dec. 10, 2008), 3-strikes-canada-crackdown.ars.

(19.) NAFTA, supra note 8, arts. 1715-18, 678-79; see Neil Jetter, NAFTA: The Best Friend of an Intellectual Property Right Holder Can Become Better, 9 Fla. J. Int'l L. 331, 333 (1994).

(20.) Vienna Convention, supra note 2; Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Nov. 8, 1990, E.T.S. No. 141 [hereinafter EC Convention on Crime].

(21.) See Vienna Convention, supra note 2, art. 7; EC Convention on Crime, supra note 20, art. 39.

(22.) Annual Report 2009-2010, Fin. Action Task Force [FATF], at 31, (July 2010), (noting importance of cooperation between FATF and international organizations). These organizations include financial organizations such as the World Bank and the IMF, as well as observer organizations such as the Edgemont Group and the U.N. Id. at 32.

(23.) Robert E. McPeak, Annual Review of Banking Law 2002, 21 Ann. Rev. Banking L. 122, 126 (2002) (noting EU leaders determination that curbing money laundering requires weakening banking privacy).

(24.) See, e.g., 18 U.S.C. [section][section] 2332d, 2339A-2339B (2006); Uniting and Strengthening America by Providing Appropriate Tools Requires to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, 115 Stat. 272, 296-301 (2001); U.N. Secretary-General, Uniting Against Terrorism: Recommendations for a Global Counter-Terrorism Strategy, [paragraph][paragraph] 39-42, U.N. Doc. A/60/825 (Apr. 27, 2006).

(25.) U.S. Department of Treasury, Office of Foreign Assets Control: What You Need to Know About U.S. Sanctions (2010), Documents/terror.pdf.

(26.) The Cayman Islands and Offshore Tax Issues: Hearing on S. 681 Before the S. Comm. on Finance, 110th Cong. 2 (July 24, 2008) (testimony of Jack A. Blum, Of Counsel, Baker & Hostetler, Washington, D.C.) (discussing common law revenue rule that no government help enforce tax laws of another government).

(27.) Council of Europe--OECD Convention on Mutual Administrative Assistance in Tax Matters, Jan. 25, 1988, 1966 U.N.T.S. 215.

(28.) Zagaris, White Collar Crime, supra note 1, at 4.

(29.) See U.S. Gov't Accountability Office, GAO-09-227, Bank Secrecy Act: Federal Agencies Should Take Action to Further Improve Coordination and Information-Sharing Efforts 9-17 (2009); Guy Stessens, Money Laundering: A New International Law Enforcement Model (2000); see also Philip Aldrich, G20 Summit: Blacklisted Tax Havens Face Sanctions, The Telegraph Apr. 3, 2009, available at summitblacklisted-tax-havens-face-sanctions.html.

(30.) org. for econ. co-operation and dev., harmful tax competition: An Emerging Global Issue (1998), Financial Stability Board, Report of the Working Group on Offshore Centres (2000),; Financial Action Task Force on Anti-Money Laundering, Report on Non-Cooperative Countries and Territories (2000), http://www.fatf-

(31.) Zagaris, White Collar Crime, supra note 1, at 5.

(32.) United Nations Convention Against Transnational Organized Crime, supra note 3.

(33.) Protocol Additional to the United Nations Convention on Transnational Organized Crime and to Prevent, Suppress, and Punish Trafficking in Persons, Dec. 15, 2000, 15 U.N.T.S. 25; Protocol Additional to the United Nations Convention on Transnational Organized Crime and Against the Smuggling of Migrants by Land, Sea and Air, Dec. 15, 2000, 15 U.N.T.S. 25; Protocol Additional to the United Nations Convention Against Transnational Organized Crime and Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts, and Components, May 31, 2001, 55 U.N.T.S. 25.

(34.) Cf. United Nations Convention Against Transnational Organized Crime, supra note 3 (authorizing domestic regulatory and supervisory regimes for financial institutions to deter and defect all forms of money laundering); Vienna Convention, supra note 2 (describing domestic enforcement approach to manufacturing, transport, or distribution of illicit drugs, or equipment to cultivate and produce drugs).

(35.) See Zagaris, White Collar Crime, supra note 1, at 6 (outlining definition of white collar crime). International white-collar crime can be divided into the following subareas: (1) substantive white-collar crimes; (2) procedural aspects of white collar crimes; (3) the role of international organizations; and (4) the role of non-governmental organizations. Id.

(36.) Vincenzo Ruggiero, Economic and Financial Crime in Europe, in La Criminalite Economique et Financiere en Europe [Economic and Financial Crime in Europe] 19, 24 (Klaus Boers & Frederic Gisler, eds., 2002).

(37.) Id. at 26-27.

(38.) Jordan J. Paust, et al., International Criminal Law: Cases and Materials 5-6 (3d ed. 2007) (describing sources of international criminal law).

(39.) International Criminal Law: Sources, Subjects, and Contents 5 (M. Cherif Bassiouni ed., 3rd ed. 2008); Statute of the Int'l Court of Justice, Art. 38, June 26, 1945, 59 Stat. 1031.

(40.) See Paust et al., supra note 38, at 5 (noting international law origins and developments).

(41.) Statute of ICJ, 3 Bevans 1179, 59 Stat. 1031, T.S. 993, 39 Am J. Int'l L. Supp. 215 (1943); International Criminal Law: Sources, Subjects, and Contents, supra note 39, at 5.

(42.) Zagaris, White Collar Crime, supra note 1, at 5-6.

(43.) Id.

(44.) Id. (defining and explaining procedural white collar crime).

(45.) Official G20 Website, (last visited 10/28/2010) (setting forth mandates, origins, membership of G20).

(46.) See Ruggiero, supra, note 36 at 26.

(47.) Human Rights Watch, Memorandum for the Session of the Int'l Criminal Court Assembly of State Parties, (Nov. 7 2008) (appraising challenge of encouraging accountability and delivering meaningful justice); ICRC--Catham

House Expert Meeting, London, England, Sept. 22-23, 2008, Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflcit, (Oct. 12, 2009); Amnesty Int'l, Human Rights Watch, The International Comm'n of Jurists and Ass'n for the Prevention of Torture, June 27, 2006, Twelve Steps to End Detentions and Secret Detentions in Europe, IOR 41/015/2010 (June 1, 2010) (urging states end secret detention due to "corrosive" effect on rule of law).

(48.) ABA Rule of Law of Law Initiative, (last visited 10/28/2010).

(49.) Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables in International Regimes 2, 2 (Stephen D. Krasner ed., 1983) (defining "regime" and "regime change"); David Zaring, International Law by Other Means: The Twilight Existence of International

Financial Regulatory Organizations, 33 Tex. Int'l L.J. 281, 309 (1998) (highlighting regimes aiding mediation and defining international relationships).

(50.) Zaring, supra note 49, at 309.

(51.) Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 244 (1984) [hereafter Keohane, After Hegemony] (detailing regimes' importance of creating favorable environments and facilitating cooperation with cost reductions).; see also Robert O. Keohane, The Demand for International Regimes, in 36 International Regimes 141, 15354 (Stephen D. Karsner ed., 1983) [hereinafter Keohane, Demand for International Regimes] (noting regimes provide negotiating frameworks but sometimes unnecessary and non-binding).

(52.) Keohane, After Hegemony, supra note 51 at 244-45 (highlighting benefits of regimes).

(53.) Robert Keohane, International Institutions and State Power: Essays in International Relations 3-4 (1989) [hereinafter Keohane, International Institutions].

(54.) Keohane, Demand for International Regimes, supra note 51, at 150.

(55.) Id. (noting regimes' usefulness and potential problems with cooperation); See also, Keohane, After Hegemony, supra note 51, at 244.

(56.) See Egmont Group of Financial Intelligence Units, (highlighting function and purpose promoting international cooperation).

(57.) See Joseph S. Nye, Jr., & Robert O. Keohane, Transnational Relations and World Politics, in Transnational Relations and World Politics 371, 380, 382 (Robert O. Keohane & Joseph S. Nye, Jr. eds., 1971) (providing diagrams of interactions between government, intergovernmental, nongovernmental actors in world politics and bilateral interactions in world politics).

(58.) Anne-Marie Slaughter, A New World Order 3-4 (2004) (describing

government networks' information sharing across borders); see also Keohane, Demand for International Regimes, supra note 51, at 148-55 (describing role of networks in facilitating international cooperation).

(59.) Slaughter, supra note 58, at 14 (defining "network").

(60.) Id. at 4.

(61.) See Keohane, After Hegemony, supra note 51, at 103 (explaining how network systems facilitate compliance).

(62.) Id. at 105.

(63.) Joseph S. Nye, Jr., The Paradox of American Power 158-163 (2002) (outlining seven tests employed in choosing amongst U.S. unilateral and multilateral tactics).

(64.) Slaughter, supra note 58, at 4 (delineating need for global governance). Government networks "composed of national government officials" are necessary for effective global governance. Id.

(65.) Id.

(66.) For more on President Clinton's remarks, see William J. Clinton, President of the United States, U.S. Initiatives Against International Organized Crime, at the 50th Anniversary Assembly of the United Nations (Oct. 22, 1995).

(67.) See Slaughter supra note 58, at 5-6 (suggesting conceptual shift for viewing governmental networks).

(68.) Id. at 6 (analyzing role of states in government networks).

(69.) Id. (listing Financial Action Task Force and EU Council of Justice and Home Affairs as examples of government networks).

(70.) Id. (explaining vertical networks formed through disaggregated international organizations).

(71.) See, e.g., Irving Tragen, World-Wide and Regional Anti-Drug Programs, in Drugs and Foreign Policy: A Critical Review 155-84 (Raphael F. Perl ed., 1994); Abraham F. Lowenthal, The Organization of American States and Control of Dangerous Drugs, in Drug Policy in the Americas 305-14 (Peter H. Smith ed., 1992) (describing revival of OAS and role of CICAD in monitoring drug problem).

(72.) Geert-Jan Alexander Knoops, An Introduction to the Law of Int'l Criminal Tribunals: A Comparative Study 1-8 (2003) (explaining origins and characteristics of international criminal tribunals). Another concrete example is the agreement between the ICC and the Special Tribunal for Sierra Leone to try Charles Taylor using the facilities of the ICC. See generally From Nuremberg to the Hague: The Future of International Criminal Justice (Philippe Sands ed., 2003) (charting development of international criminal justice principles).

(73.) See Slaughter, supra note 58, at 8 (suggesting more government threatens individual liberty).

(74.) See id. at 9 (discussing complications and solutions for globalization paradox at international level).

(75.) Id. (noting global policy networks' benefits). Global policy networks have been important to global governance because of "their ability to bring together all public and private actors on issues critical to the global public interest." Id.; see also David Held & Anthony McGrew, Introduction, in Governing Globalization 1-21 (David Held & Anthony McGrew eds., 2002) (providing background on emergence of calls for global governance).

(76.) Kal Raustiala, The Architecture of International Cooperation:

Transgovernmental Networks and the Future of International Law, 43 Va. J. Int'l L. 1, 11-12 (2002) (citing Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs, June 16, 1936, 198 L.N.T.S. 4648); see also S.K. Chatterjee, Legal Aspects of International Drug Control 168-85 (1981).

(77.) Raustiala, supra note 76, at 12 (demonstrating precedent of transnational cooperation is not new concept). The communications between the new agencies were meant to be direct "rather than through normal diplomatic channels." Id.

(78.) Slaughter, supra note 58, at 10.

(79.) Ngaire Woods, Global Governance and the Role of Institutions, in Governing Globalization, supra note 75 at 25, 31.

(80.) Slaughter, supra note 58, at 10 (discussing challenges global governance fences).

(81.) Id. (citing Robert O. Keohane & Joseph S. Nye, Jr.,

Transgovernmental Relations and International Organizations, World Politics 27, 39 (1974)); see also Robert O. Keohane & Joseph S. Nye, Jr., Transnational Relations and World Politics: An Introduction, in Transnational Relations and World Politics ix, xi (Robert O. Keohane and Joseph S. Nye, Jr., eds., 1970).

(82.) See, e.g., Robert S. Jordan et al., International Organizations 97119 (4th ed. 2001) (discussing institutional and bureaucratic developments).

(83.) Slaughter, supra note 58, at 13-14 (describing different organizations of loose intergovernmental networks).

(84.) Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 Va. J. Int'l L. 1, 5 (2002) (acknowledging controversy surrounding debate).

(85.) Id.

(86.) Slaughter, supra note 58, at 5-6 (comparing implementation of networks to other enforcement methods).

(87.) Bruce Zagaris, The Assault on Law Tax Jurisdictions: A Call for Balance and Debate, 28 Tax Mgmt Int'l J. 474-500 (Aug. 13, 1999) (discussing regulatory regimes).

(88.) Id. at 483 (highlighting criticisms of FATF and OECD tax practice initiatives).

(89.) Financial Action Task Force on Money Laundering, Review of the FATF Forty Recommendations: Consultation Paper (May 30, 2002),

(90.) International Monetary Fund Fact Sheet, The IMF and the Fight Against Money Laundering and the Financing of Terrorism, (2010),

(91.) See James K. Jackson, Cong. Research Serv., R40114, The OECD Initiative on Tax Havens 14 (2009), available at (discussing OECD efforts to strengthen Global Forum on Transparency and Exchange of Information by expanding countries' participation).

(92.) Zagaris, White Collar Crime, supra note 1.

(93.) Id.

(94.) North American Free Trade Agreement, U.S.-Can.-Mex., ch. 17, Dec. 17, 1992, 32 I.L.M. 289 (1993).

(95.) Ethan Nadelmann, Harmonization of Criminal Justice Systems, in The Challenge of Integration: Europe and the Americas 247, 247-51 (Peter H. Smith ed., 1993).

(96.) Id. at 272 (showing process by which transnational commerce can be encouraged via improved intergovernmental coordination).

(97.) Id. at 254-55 (illustrating various stages of law enforcement collaboration).

(98.) Joint Statement of the Merida Initiative High-Level Consultative Group on Bilateral Cooperation Against Transnational Organized Crime, U.S.-Mex., Mar. 29, 2010 [hereinafter Joint Statement], available at http ://www. state. gov/ secretary/rm/2010/03/139196.htm.

(99.) William Booth, Mexican Gang Leader Held in Deaths of 3 With Ties to U.S. Consulate, Wash. Post, Mar. 30, 2010, at A13.

(100.) Joint Statement, supra note 98 (outlining U.S./Mexico plan for eradicating transnational organized crime).

(101.) Charter of the Organization of American States, The Inter-American Juridical Committee, Chapter XIV, art. 99, April 30, 1948. The Committee has eleven members elected by the General Assembly for a period of four years from panels of candidates presented by the member states. To facilitate an equitable

geographical representation, no two members of the committee can be from the same state. See id.

(102.) Bruce Zagaris, Developments in the Institutional Architecture and Framework of International Criminal and Enforcement Cooperation in the Western Hemisphere, 37 U. Miami Inter-Am. L. Rev. 421, 472 (2006); see also David P. Warner, Law Enforcement Cooperation in the Organization of American States: A Focus on REMJA, 37 U. Miami Inter-Am. L. Rev. 387, 387-420 (2006) (describing REMJA's role in addressing international crime).

(103.) Zagaris, supra note 102, at 476-80 (describing functions of REMJA).

(104.) See Warner, supra note 102, at 403-04, 406 (discussing members of REMJA-I cooperating and exchanging information).

(105.) Warner, supra note 102, at 400 (discussing REMJA framework and disposition within OAS).

(106.) Id., at 400-04 (explaining function and relationship to OAS).

(107.) Id.

(108.) Id.

(109.) Warner, supra note 102, at 400-04

(110.) Id., at 406, 415-418 (discussing May 2003 meeting's proposal for promoting law enforcement cooperation).

(111.) Paust et al., International Criminal Law: Cases and Materials, supra note 38, at 131, 540 (3d ed. 2007) (discussing U.S. and international efforts to prosecute violators of customary international law).

(112.) See Bruce Zagaris & Constantine Papavizas, Using the Organization of American States to Control International Narcotics Trafficking and Money Laundering, 57 Rev. Int'l de Droit Penal 118, 119 (1986) (discussing how to better use OAS and regional organizations in international criminal cooperation).

(113.) Harold Hongju Koh, Legal Advisor, U.S. Dep't of State, Keynote Address at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), http://www. state. gov/ s/l/releases/remarks/139119.htm.

(114.) Id.

(115.) Id.

(116.) See, e.g., David Weissbrodt & Amy Bergquest, Extraordinary Rendition: A Human Rights Analysis, 19 Harv. Hum. Rts. J. 123 (Spring 2006) (describing Bush Administration violations of international human rights law); Kenneth Roth, The Law of War in the War on Terror, Foreign Affairs, Jan/Feb. 2004 at 2 (arguing for protecting rights by prosecuting terrorists under criminal law)

(117.) Interview by Tim Russert with Dick Cheney, Vice President of the United States, (Sept. 16, 2001)

(118.) See Int'l Center for Transitional Justice, United States Submission to the Universal Periodic Review of the United Nations Human Rights Council Ninth Session: November 22-December 3, 2010 4 (April 16, 2010) (noting investigation's focus on low ranking officials).

(119.) Koh, supra note 113.

(120.) Paust et al., supra note 38, at 131.

(121.) Eric Lichtblau and Scott Shane, Report Faults 2 Authors of Bush Terror Memos, N.Y. Times, Feb. 19, 2010, at A1.

(122.) Id. (discussing career official's conclusion); see also Office of Prof'l Responsibility, U.S. Dep't of Justice, Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspect Terrorists 260-61 (2009) (finding misconduct and referring attorneys to state bar associations for potential disciplinary action).

(123.) See Memorandum from David Margolis, Assoc. Deputy Att'y Gen., to the Att'y Gen. 68 (Jan. 5, 2010) [hereinafter Margolis Memorandum], available at (declining to adopt OPR's findings of misconduct); see also Eric Lichtblau and Scott Shane, Report Faults 2 Who Wrote Terror Memos, N.Y. Times, Feb. 20, 2010, at A1 (summarizing outcome of report).

(124.) Margolis Memorandum, supra note 123, at 38-41.

(125.) 539 U.S. 558 (2003).

(126.) Id. at 573.

(127.) Richard Posner, No Thanks, We Already Have Our Own Laws, Legal Aff., July.-Aug. 2004, at 40, available at http://

(128.) Id.

(129.) Justice Ruth Bader Ginsburg, United States Supreme Court, Address at the Constitutional Court of South Africa: A Decent Respect to the Opinions of [Human] Kind: The Value of a Comparative Perspective in Constitutional Adjudication (Feb. 7, 2006) (transcript available at =sp_02-07b-06.html).

(130.) 542 U.S. 507 (2004)

(131.) Id. at 509-10.

(132.) A v. Sec 'y of State for the Home Dep't, (The Belmarsh Case) [2004] UKHL 56, [2005] 2 A.C. 68 (H.L.) (appeal taken from Eng.).

(133.) Hamdi, 542 U.S. at 508.

(134.) Id. at 533.

(135.) Id. at 530.

(136.) See Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J. dissenting) (criticizing discussion of foreign law viewpoints); Atkins v. Virginia, 536 U.S. 304 (2002) (Rehnquist, C.J., dissenting) (calling use of foreign law in decision defective); Justices Scalia and Breyer, Constitutional Relevance of Foreign Court Decisions, American University Washington College of Law (Jan. 13, 2005),; see also Jason Chandler, Note, Foreign Law--A Friend of the Court: An Argument for Prudent Use of International Law in Domestic, Human Rights Related Constitutional Decisions, 34 Suffolk Transnat'l L. Rev. (forthcoming Mar. 2011).

(137.) See Osmar J. Benvenuto, Reevaluating the Debate Surrounding the Supreme Court's Use of Foreign Precedent, 74 Fordham L.R. 2695 (2006) (discussing historical application of foreign courts). See generally Chandler, supra note 136 (outlining weight of foreign law in U.S. courts).

(138.) See Koh, supra note 113, at Part C. (explaining Obama Administration's policies on selecting forum for prosecuting terrorists).

(139.) Department of Defense, List of Detainees Who Went Through the Complete Status Review Tribunal Process, (Apr. 19, 2006),

(140.) Carol Rosenberg, Jury Sentences 'ChildSoldier' to 40 Years at Guantanamo, Miami Herald, Oct. 31, 2010.

(141.) President Obama, Remarks by the President on National Security, (May 21, 2009) (transcript available at National-Security-5-21-09/).

(142.) Michael Rubin & Suzanne Gershowitz, How to Deal with Kidnapping in Iraq, Am. Enterprise Inst. for Pub. Pol'y,

(last visited Nov. 2, 2010) (detailing Iraqi attempts at intimidation to other nations).

(143.) See Koh, supra note 113, part III.C. (describing acts of terrorism as war crimes and violations of federal law).

(144.) See Obama, supra note 141.

(145.) Id.

(146.) Id.

(147.) See Koh, supra note 113, part III.C. (setting forth amendments to Military Commissions Act).

(148.) Id.

(149.) Id.

(150.) See Zagaris, White Collar Crime, supra note 1, at 324 (outlining exceptions to extradition).

(151.) 130 S.Ct. 2278 (2010).

(152.) 106 Stat. 73 (codified at 28 U.S.C. [section] 1350).

(153.) See Yousuf v. Samantar, No. 1:04cv1360, 2007 WL 2220579 (E.D. Va. Aug. 1, 2007), rev'd 553 F.2d 371 (4th Cir. 2009).

(154.) Yousuf v. Samantar, 552 F.3d. 371 (4th Cir. 2009), aff'd 130 S. Ct. 2278 (2010).

(155.) Petition for Writ of Certiorari, Samantar v. Yousuf, 130 S. Ct. 2278

(2010) (No. 08-1555), 2009 WL 1759041.

(156.) 28 U.S.C. [section] 1350

(157.) See Martha Lovejoy, From Aiding Pirates to Aiding Human Rights Abusers: Translating the Eighteenth Century Paradigm of the law of Nations for the Alien Tort Statute, 12 Yale Hum. Rts. & Dev. L.J. 241, 244 (2009) (surveying historical context of ATS).

(158.) Id.

(159.) See generally id. (charting expansion of ATS jurisprudence to include human rights violations).

(160.) See, e.g., Trajano v. Marcus, 978 F.2d 493 (9th Cir. 1992) (using ATS to resolve torture case).

(161.) Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

(162.) Id. at 878.

(163.) Id.

(164.) Id.

(165.) Id. at 880.

(166.) 630 F.2d 876, 885 (2d cir. 1980).

(167.) Id. at 884-85.

(168.) See Katherine Iliopoulous, Afghan Amnesty Law a Setback for Peace (Mar. 22, 2010), (examining failures of amnesty law); Afghanistan: Repeal Amnesty law, Human Rights Watch (Mar. 10, 2010), http://www.hrw. org/en/news/2010/03/10/afghanistan-repeal-amnestylaw (criticizing protection amnesty law offers abusers).

(169.) No Safe Haven: Accountability for Human Rights Violators in the United States Before the Sub. Comm. on Human Rights and the Law of the S. Comm. on the Judiciary, 110th Cong. 22 (2007) (statement of Pamela Merchant, Exec. Dir. for Justice and Accountability, San Francisco, CA) (estimating number of human rights abusers in U.S.).

(170.) See Joshua Partlow & Julie Tate, 2 Afghans Allege Abuse at U.S. Site, Wash. Post, Nov. 6, 2009, at A1 (portraying allegations of detainee abuse in Afghanistan).

(171.) Id.

(172.) Id.

(173.) Geneva Convention (IV) Relative to the Treatment of Prisoners of War, art. 76, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (defining role of ICRC in international conflicts).

(174.) Parlow & Tate, supra note 170, at A1.

(175.) Alissa J. Rubin, Afghans Detail U.S. Detention in "Black Jail," N.Y. Times, Nov. 29, 2009, at A1.

(176.) See Partlow & Tate, supra note 170, at A1 (describing U.S. efforts to improve detainee camp conditions).

(177.) Id. (detailing specific additions designed to accommodate detainees).

(178.) Rubin, supra note 175, at A1.

(179.) Id. (highlighting Defense Dep't acknowledgement of abuse allegations).

(180.) Id.

(181.) Greg Stohr, U.S. High Court Rejects Appeal Alleging Torture at Guantanamo Share Business, Bloomberg, Dec. 14, 2009; Rasul v. Meyers, 563 F.3d 527 (D.C. Cir. 2009) (resulting in denied certiorari request).

(182.) Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 28-29, (D.D.C. 2006) (alleging mistreatment of prisoners), vacated sub nom. Rasul v. Myers, 129 S. Ct. 763 (2008).

(183.) Complaint [paragraph] 210, Rasul v. Rumsfeld, 414 F. Supp. 2d 26 (D.D.C. 2006), vacated sub nom. Rasul v. Myers, 129 S. Ct. 763 (2008).

(184.) Id.

(185.) See Rasul v. Myers, 512 F.3d 644, 672 (2008) (affirming dismissal of complaint); see also Rasul v. Myers, 563 F.3d 527, 532 (2009) (reaffirming dismissal of complaint upon remand from U.S. Supreme Court).

(186.) Rasul, 512 F.3d at 672.

(187.) See Boumediene v. Bush, 553 U.S. 723, 797 (2008) (holding Guantanamo prisoners have right to habeas corpus relief).

(188.) 550 U.S. 1301, 1302 (2007).

(189.) Rasul v. Myers, 129 S. Ct. at 763.

(190.) See Rasul v. Myers, 563 F.3d 527, 528 (reinstating prior judgment dismissing complaint).

(191.) Id. at 533.

(192.) Id. at 532.

(193.) See Harlow v. Fitzgerald, 457 U.S. 800 (1982) (articulating burden that qualified immunity claims must overcome to survive motion to dismiss).

(194.) U.S. Attorney Gen. Eric Holder, Speech Regarding a Preliminary Review Into the Interrogation of Certain Detainees (Aug. 24, 2009), (last visited Feb. 12, 2011).

(195.) See, e.g., 10 U.S.C. [section]818; The Lieber Code (1863) (conferring jurisdiction on general courts-martial to try war criminals).

(196.) See generally Bardo Fassbender, Can Victims Sue State Officials for Torture? Reflections on Rasul v. Myers from the Perspective of International Law,

6(2) J. Int'l Crim. Just. 347, 347-69 (2008) (discussing effectiveness of claimant's right to be heard by "competent authority").

(197.) United Nations Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, art. 14(1), Dec. 10 1984, 1465 U.N.T.S. 85.

(198.) International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

(199.) Id. art. 2(1).

(200.) Id.

(201.) See e.g., Soeren Kern, Spain Changes Tack On Universal Jurisdiction, The Brussels Journal (Jun. 1, 2009),

(202.) Arar v. Ashcroft, 585 F.3d 559, 563 (2d Cir. 2009).

(203.) Id. at 565-66.

(204.) Id. at 574.

(205.) Id. at 571-75.

(206.) Id. at 568.

(207.) Id.

(208.) Arar, 585 F.3d at 572-73.

(209.) See id. at 582-83 (Calabresi, Poder, Sack ,Parker, J.J, dissenting).

(210.) Id. at 591.

(211.) Id. at 205.

(212.) See Second Periodic Report of the United States of America to the Committee Against Torture, May 6, 2005 art. 3 ^ 30, available at http://www. state. gov/documents/organization/62175.pdf.

(213.) See generally Curtis A. Bradley, U.S. Announces Intent Not to Ratify International Criminal Court Treaty, ASIL Insights (May 2002),

(214.) American Service Members Protection Act, Pub. L. No. 107-206, [section] 2002, 116 Stat. 899 (2002) (codified at 22 U.S.C. [section] 7421 (2006)).

(215.) Jed Borod, UNHCR Says Sweden Violated Convention Against Torture in Agiza Case, 21 Int'l Enforcement L. Rep. 372 (Sept. 2005); Committee Against Torture, Office of the United Nations' High Commissioner for Human Rights, Complaint No. 233/2003, CAT/C/34/D/233/2003, May 24, 2005.

(216.) Bruce Zagaris, Inquiry Shows Canadian, U.S. Officials Violated Arar's Human Rights, 11 Int'l Enforcement L. Rep. 434 (2006) (summarizing "O'Connor Report" and explaining violations of Maher Arar's human rights).

(217.) See Koh, supra note 113, at Part III.B (emphasizing Obama Administration's commitment to complying with domestic and international law).

(218.) Proclamation No. 13,492, 74 Fed. Reg. 4, 897 (Jan. 22, 2009).

(219.) Id.

(220.) Id.

(221.) Id.

(222.) Id.

(223.) Proclamation No. 13,492, 74 Fed. Reg. 4, 897 (Jan. 22, 2009).

(224.) Id. at 4898.

(225.) Id.

(226.) Id. at 4899.

(227.) Id.

(228.) Proclamation No. 13,492, 74 Fed. Reg. 4, 897 (Jan. 22, 2009).

(229.) Id.; see also Mark Mazzetti & William Glaberson, Obama Will Shut Guantanamo Site and C.I.A. Prisons, N.Y. Times, Jan. 22, 2009, at A1.

(230.) Executive Order No. 13493, 74 Fed. Reg. 4901, 4901 (Jan. 22, 2009).

(231.) Id.

(232.) Koh, supra note 113, at (explaining Obama administration's position on treatment of detainees).

(233.) Executive Order No. 13491, 74 Fed. Reg. 4893, 4893 (Jan. 22, 2009).

(234.) Id.

(235.) Id. at 4894.

(236.) Id.

(237.) Dep't of the Army, FM 2-22.3: Human Intelligence Collector Operations vi (2006), available at

(238.) Exec. Order No. 12491, 74 Fed. Reg. 4893, 4893 (Jan. 27, 2009).

(239.) Id. at 4895.

(240.) Jordan Paust, Banning Torture Is Not Enough, Jurist, (Jan. 23, 2009), http://

(241.) Koh, supra note 113, (discussing findings of interagency review of U.S. interrogation practices).

(242.) Id.

(243.) Id. (citing Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135); see also Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, June 9, 1977, 1125 U.N.T.S. 609, 612-13; Hamdi, 542 U.S. at 531-32 (2004).

(244.) Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, 115 Stat. 224.

(245.) Koh, supra note 113, Part III.B. 1 .b (providing source of detention authority given by Congress in AUMF).

(246.) Id. (explaining Administration's authority to detain).

(247.) See e.g., Charlie Savage, Obama Team Split on Tactics Against Terror, N.Y. Times, Mar. 29, 2010, at A1 (noting differences of opinion about following rule of law exist within the Obama Administration).

(248.) Faiza Patel, Who Can Be Detained in the "War on Terror"? The Emerging Answer, ASIL Insight, Oct. 20, 2009, at 2 (citing Gherebi v. Obama, 609 F. Supp. 2d 43, 53 (D.D.C. 2009)) (noting Congress' intent to authorize President to detain individuals fighting on behalf of or supporting enemy organizations).

(249.) Id. at 4 (explaining ICRC report defining state detention power as limited to authority to detain direct participants in hostilities).

(250.) Koh, supra note 113, at Part III B.1.b. (noting legal objections against U.S. targeting actions).

(251.) Savage, supra note 247.

(252.) Patel, supra note 248, at 1 (citing Hamlily v. Obama, 616 F. Supp. 2d 63, 75 (D.D.C. 2009)); see also Al Mattan v. Obama, 618 F. Supp. 24, 26 (D.D.C. 2009); Al Odah v. United States, No. 02-828, 2009 U.S. Dist LEXIS 78222, at *14 (D.D.C. Aug. 2009).

(253.) Patel, supra note 248, at 1 (citing International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities, available at report.pdf).

(254.) Memorandum from Barack Obama, Pres., to Eric Holder, Att'y Gen. et al, On Review of the Detention of Ali Saleh Khalah Al-Marri (Jan. 22, 2009).

(255.) Id.; see also Al-Marri v. Pucciarelli, 534 F.3d. 213, cert. granted, 129 S.Ct. 680 (2008) (mem.)

(256.) Plea Agreement and Stipulation of Facts, United States v. Al-Marri No. 09-CR-10030 (C.D. Ill. Apr. 3, 2009).

(257.) See Scott Shane, Mark Massetti and Helene Cooper, Obama Reverses Key Bush Security Policies, N.Y. Times, Jan. 23, 2009, at A16.

(258.) See Paust, supra note 240.

(259.) See Mark Mazzetti & Scott Shane, Where Will Detainees from Guantanamo Go?, N.Y. Times, Jan. 3, 2009, at A13.

(260.) Paust, supra note 240.

(261.) See James Rowley, Senate Republicans Delay Vote on Holder Nomination (Update2), Bloomberg News (Jan. 21, 2009), (commenting Republicans forced Holder confirmation delay).

(262.) See Robert Weller, Tainted Evidence Delays First Civilian Trial of Alleged Terrorist, Allvoices (Oct. 06, 2010) delaysfirst-civilian-trial-of-alleged-terrorist (noting tainted evidence principle), Jameel Jaffer & Ben Wizner, Don't Replace the Old Guantanamo with a New One, Salon (Dec. 9, 2008), (suggesting evidence may not be admissible).

(263.) See Lukas Pleva, Updates: Plan to Close Guantanamo Faces Opposition from Congress, (Sept. 16, 2010), bay-detention-center/ (outlining issues facing close of Guantanamo).

(264.) Kenneth Roth, Empty Promises? Obama's Hesitant Embrace of Human Rights, Foreign Affairs, Mar./Apr. 2010, at 10, 11 (discussing procedural and evidentiary issues with prosecuting Guantanamo detainees).

(265.) Id.; see, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); Robert Barnes, Justices Weigh Free Speech Against Help for Terrorists, Wash. Post, Feb. 24, 2010, at A3 (discussing oral argument in the Humanitarian Law Project case); John Farmer, What Does It Take to Aid a Terrorist?, N.Y. Times, Feb. 23, 2010, at A27 (noting lack of clear definition of "providing material support" to terrorist organizations).

(266.) Roth, supra note 264, at 11.

(267.) Id.

(268.) Koh, supra note 113, at 21B (declaring targeting operations conducted lawfully under international laws of armed conflict and domestic law).

(269.) Id.

(270.) Id.

(271.) Id.

(272.) Jane Mayer, The Predator War: What are the Risks of the C.I.A.'s Covert Drone Program, The New Yorker, Oct. 26, 2009, at 36.

(273.) Interview by Juan Gonzalez and Amy Goodwin with Prof. Philip Alston, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, (Apr. 1, 2010), transcript available at (discussing U.S. defense of drone attacks' legality).

(274.) Koh, supra note 113, at 15.

(275.) Id. (discussing U.S. review of rules governing targeting operations).

(276.) Kenneth Anderson, UN Special Rapporteur to 'Investigate' US Drone Strikes, Opinio Juris (June 4, 2009), us-drone-strikes.

(277.) Id.

(278.) Mayer, supra note 272 (highlighting contrast between publically acknowledged and covert uses of drones by United States).

(279.) Id.

(280.) Philip Alston & Hina Shamsi, Op-Ed., A Killer Above the Law?, Guardian, Feb. 8, 2010, (describing negation of accountability when government security prevails).

(281.) See id. (describing "Playstation mentality" surrounding drone killings).

(282.) Jennifer K. Elsea & M. Maureen Murphy, Cong. Research Serv., RS22469, Treasury's Terrorist Finance Program's Access to Information Held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) 1

(2006) (addressing legislative action towards SWIFT, a Brussels-based organization owned by banks in many countries that serve as hub for international fund transfers).

(283.) Ellen Nakashima, U.S. Blasts E. U. Rejection of Deal to Share Bank Data, Wash. Post, Feb. 12, 2010, at A18.

(284.) Stanley Pignal, European Parliament Rejects US Data Swap Deal, Fin. Times (Brussels), Feb. 11, 2010 (describing European Parliament's rejection of U.S. overtures for data exchange).

(285.) Pignal, supra note 284 (describing concern in Europe about American access to SWIFT data); James Kanter, Europe Rejects Sharing Of Bank Data With U.S., N.Y. Times, Feb. 12, 2010, at B6 (showing origin of concern with sharing bank data).

(286.) Pignal, supra note 284 (detailing steps taken by U.S. to achieve bank data sharing).

(287.) Id.

(288.) Id.

(289.) Pignal, supra note 284 (describing potential U.S. response to denial of data sharing).

(290.) See Pignal, supra note 284 (describing rejection of deal that would have led U.S. and EU to share bank transfer data).

(291.) Kanter, supra note 285 (summarizing tension between American prerogatives and EP power).

(292.) See International Criminal Court, The States Parties to the Rome Statute,

(293.) American Servicemembers' Protection Act of 2002 [section][section] 2001-15, Pub. L. No. 107-206, 116 Stat. 820 (2002) (codified at 22 U.S.C. [section][section] 7421-7433 (2006)).

(294.) See John R. Crook, ed., Contemporary Practice of the United States Relating to International Law, 99 Am. J. Int'l L. 691 (2005) (outlining vote for referring Darfur atrocities to ICC).

(295.) Koh, supra note 113 (describing emerging "Obama-Clinton Doctrine" and four commitments).

(296.) John Washburn, From Anxiety to Complacency: Prospects for the US ICC Relationship, (Sept. 24, 2010), 20Anxiety%20to%20Complacency_EN.pdf (outlining increased U.S. involvement in ICC).

(297.) Koh, supra note 113 (describing role of U.S. Department of State).

(298.) Id. For a discussion of two options for negotiators to consider in the event there is no Security Council determination of aggression or referral of aggression to the Prosecution, see David Scheffer, A Pragmatic Approach to Jurisdictional and Definitional Requirements for the Crime of Aggression in The Rome Statute, 41 Case W. Res. J. Int'l L. 397, 401-409 (2009).

(299.) See generally Int'l Bar Ass'n, International Terrorism: Legal Challenges and Responses (2003) (explaining complex legal issues and IBA proposals and findings).

this new international justice will necessarily be in the International Criminal Court. In the future, the international community and the United States will be challenged to conceptualize and develop other new regimes too, such as uniform institutions and protocols counter-drug control agencies, financial intelligence units, cybercrime agencies, asset forfeiture agencies, securities and commodities futures enforcement, anti-trust agencies, tax agencies, and so forth. Already, the international community has developed conventions on international enforcement, such as those on anti-corruption, counter-drug trafficking, and transnational corruption. Increasingly, the international community will need to establish more mechanisms and institutions like the Egmont Group, and more soft law to facilitate the establishment, development, interaction and cooperation between national enforcement agencies. As international enforcement regimes emerge and rise, international networks will play important roles as well.

The challenge for law students interested in pursuing a career involving international enforcement law is how to serve as a catalyst for providing order and stability both nationally and internationally. The contemporary world offers enormous challenges and opportunities to become involved, whether on a broad scale in designing and implementing international enforcement regimes or subregimes, working on hard and soft law solutions, or participating in drafting conventions, laws, and regulations, or by simply helping resolve disputes and cases.

Bruce Zagaris, Bruce Zagaris is a partner at Berliner, Corcoran & Rowe, L.L.P. in Washington, D.C.
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Author:Zagaris, Bruce
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Date:Jan 1, 2011
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