Brookings: Topics - Law and Justice

Protecting U.S. Citizens’ Constitutional Rights During the War on Terror

Robert M. Chesney and Benjamin Wittes — Wed, 22 May 2013 09:20:00 -0400

Editor’s Note: On Wednesday, May 22, Robert Chesney and Benjamin Wittes testified before the House Committee on the Judiciary on the subject “Protecting U.S. Citizens’ Constitutional Rights During the War on Terror.”

Thank you, Chairman Goodlatte, Ranking Member Conyers, and members of the committee for this opportunity to give our views on the subject of military detention under the laws of war of terrorist suspects arrested within the United States.

This written statement represents the views of Robert Chesney, Professor of Law at the University of Texas School of Law and Non-Resident Senior Fellow at the Brookings Institution, and Benjamin Wittes, Senior Fellow at the Brookings Institution.

We would like to make four major points today, points which lead to a single recommendation:

First, a review of the relevant case law suggests that the Supreme Court as currently aligned would probably not approve the use of long-term military detention under color of the Authorization for the Use of Military force (AUMF) with respect to a United States citizen detainee who was arrested by law enforcement authorities within the United States. Whether it would approve detention for a non-citizen captured within the United States is also in doubt, though the matter is less clear in that setting.

Second, current criminal justice authorities provide ample grounds for ensuring the incapacitation of such persons in most foreseeable instances. There is little if anything to be gained for the executive branch in gambling with the domestic military detention option, which would carry significant litigation risk and guarantee divisive political friction.

Third, although the Bush administration did use military detention for domestic captures in two instances—one involving a citizen, another a non-citizen—it typically relied on the criminal justice system instead. Indeed, in the case of the citizen detainee, it eventually backed away in the face of a looming judicial reversal. The Obama administration has stayed this course, taking similar action with respect to the domestic non-citizen detainee in military custody. Today it is highly unlikely that an administration of either party would attempt to use these authorities again.

Fourth, because these options nonetheless have not formally been foreclosed in law, there are periodic surges of interest in them by both political supporters and opponents. Supporters demand their use in cases like that of the Boston Marathon bombing. Opponents, meanwhile, have gone to court to seek injunctive relief against law of war detention authorities based on speculative fears of military detentions that will not take place. All of this is disruptive, undesirable, and unnecessary.

Based on these observations, we therefore recommend that Congress codify in statute today’s practical status quo. That is, Congress should state explicitly that detention authority under the AUMF and the NDAA does not extend to any persons captured within the territory of the United States. We provide a more expansive discussion of these points below, in two parts. The first part outlines the legal context against which these issues arise today. The second discusses the practical and policy consequences of leaving the current status quo uncodified in statute and explains our recommendation for legislation.

The Legal Context of Military Detention of Citizens and Persons Captured Within the United States

In some circumstances, the domestic use of law of war detention clearly is lawful and appropriate. The American Civil War provides the best example: Just about every one of the Confederate soldiers attacked and detained by Union forces in that conflict were American citizens. The problem of citizens’ fighting for the enemy has not been limited to the Civil War, however. For varying reasons, American citizens have fought for the enemy in several other conflicts as well.

World War II provides a pair of striking examples that resulted in federal court decisions. One involved an American citizen--Gaetano Territo--who grew up in Italy and was conscripted into the Italian Army, only to be captured during the allied invasion of Sicily and then held for years as a POW. The other involved a group of saboteurs--two of with claims to American citizenship--who were dispatched by the German military to conduct a campaign of bombings in the United States, only to be captured after one of the men reached out to the FBI to reveal the plot. Both cases generated clear statements from the courts to the effect that an American who becomes a member of the enemy’s armed forces during a war has no right to be treated differently than other enemy soldiers. In re Territo (a Ninth Circuit decision) applied that rule in affirming that it was perfectly lawful to hold Territo as a POW, and Ex parte Quirin (a Supreme Court decision) not only said the same but also approved prosecution by military commission for both the citizens and non-citizens among the captured German saboteurs.

Not all cases are so clear cut, however. Consider the famous case Ex parte Milligan, which involved events during the American Civil War. Milligan and others were taken into custody by military authorities in Indiana, and eventually prosecuted by military commission for plotting to seize arms and use them to break prisoners out of a nearby POW camp maintained by the Union. The Supreme Court ultimately held that Milligan should not have been subjected to these measures because he was not said to be part of the Confederate armed forces and because the civilian courts were still open and functioning in Indiana at that time.

The line between Milligan, on one hand, and Territo and Quirin, on the other, is clear enough: persons who are part of the armed forces of the enemy during an armed conflict are not relieved from military detention (or from prosecution by military commission in the event of a war crime allegation) simply by virtue of being U.S. citizens. Where the person is not part of the enemy’s armed forces, however, military detention or trial is not an option if ordinary civilian courts remain open. This thumbnail sketch provides key context for understanding post-9/11 debates regarding the constitutionality of military detention for U.S. citizens.

But there is a second important element to consider as well: in the context of any given conflict fought under color of a congressional authorization to use force, the courts have to consider whether Congress intended for the executive branch to wield detention authority over citizens in the first place. This was not a question that generated attention prior to the mid-20th century, but it is a pressing question today, thanks to the Non-Detention Act of 1971 (18 USC § 4001(a)), which provides that citizens may not be detained other than pursuant to statute. That law requires the executive branch, and ultimately the courts, to ask whether an authorization to use force that may not mention detention explicitly nonetheless authorizes it implicitly--and thus counts as sufficient statutory authority to satisfy the Non-Detention Act.

Against this backdrop, consider the events of the post-9/11 period as they relate to the detention of citizens and of other persons captured within the United States. The question of citizen detention arose briefly at the very outset of the conflict in Afghanistan, thanks to the capture of “American Taliban” John Walker Lindh. Lindh was in military custody initially, and unavoidably so in the circumstances. After a time, however, the Bush administration chose to transfer him into the civilian criminal justice system in the United States, the first of many successful prosecutions in the Bush years involving persons linked to the Taliban and al Qaeda. That move prevented exploration of whether Lindh could simply have been held for the duration of hostilities like other enemy fighters.

As it turned out, however, Lindh was not the only citizen fighting with the Taliban. Yaser Esam Hamdi had been born in Louisiana, and thus had a plausible claim to citizenship as well. This came out after his capture in Afghanistan and after his transfer to Guantanamo. At that point, he was promptly shifted to a military facility within the United States, but unlike Lindh, Hamdi remained in military custody. His situation was quite similar to that of Gaetano Territo (the Italian-American POW discussed above) except that crucially, Hamdi did not concede that he had been part of the enemy’s armed forces. Ultimately, his habeas corpus petition reached the Supreme Court, which in 2004 issued a split decision: As a citizen, Hamdi was entitled to more process than he had thus far received, but on the other hand, he would indeed be subject to military detention if the government could prove he had been a Taliban fighter, as it alleged.

The Court in Hamdi went out of its way to confine its holding to the particular facts presented in that case, plainly conscious that other fact patterns might arise in circumstances that did not so clearly track Territo or Quirin. The justices had one such example before them at that very moment: the case of Jose Padilla.

Jose Padilla was an American citizen who went abroad to join the jihad movement prior to 9/11. He became famous in May 2002 when he was arrested in Chicago coming off an international flight. The government announced that he was an al Qaeda agent planning an attack in the United States, possibly involving a “dirty” (i.e., radiological) bomb. He was not arrested on criminal charges, however, but rather was held on a “material witness” arrest warrant (a centuries-old statutory authority to use the power of arrest when necessary to ensure that a witness is available to testify before a grand jury or at trial). As we explain in more detail in the next section, the problem the government faced was that its knowledge about Padilla’s plans was based at least in part on the coercive--and highly classified--interrogation of a separate suspected al Qaeda member. With criminal prosecution not plausible for the time being, and the clock ticking on the viability of material-witness detention, the Bush administration eventually opted to shift Padilla into military custody. Habeas litigation, not surprisingly, followed thereafter.

Padilla’s case closely resembled the Quirin scenario, in that he was said to be an agent of the enemy who had entered the United States surreptitiously in an attempt to carry out bombings. It also had elements of Milligan, however, in that that Padilla was not alleged to be a soldier in any sort of recognized armed force, but rather was part of a clandestine terrorist network. That terrorist network was the enemy in the current conflict, of course, which is why many viewed the situation as a direct repeat of Quirin. This made sense to the first district judge to consider the matter, at any rate. Relying on Quirin and distinguishing Milligan, future Attorney General Michael Mukasey held in Padilla ex rel. Newman v. Bush that Padilla was detainable in theory, expressly rejecting the argument that his citizenship immunized him--though also insisting that Padilla be allowed to challenge the factual basis for the government’s claims. The Second Circuit Court of Appeals reversed, however, concluding that for a non-battlefield capture like Padilla, the Non-Detention Act would not be satisfied without a clear statement from Congress of its intention for the AUMF to provide detention authority over citizens.

The stage was set for the Supreme Court to settle the matter, but things quickly got complicated. Four of the Justices took the position that Padilla was not subject to detention. Five, however, withheld judgment on the merits in favor of focusing on a procedural error: The petition, they said, should have been litigated in the federal court in South Carolina and in the Fourth Circuit Court of Appeals, not in New York and in the Second Circuit.

Notwithstanding the Supreme Court’s vacating of the Second Circuit’s ruling, it was clear from the contemporaneous Hamdi decision that one of the five justices in Padilla majority almost certainly would side with Padilla on the merits. Justice Scalia dissented in Hamdi, arguing that detention should not be available for U.S. citizens even in the clearer circumstances Hamdi presented. It thus appeared only a matter of time and procedure before a majority of the Court would hold that detention under the AUMF was not available for U.S. citizens captured inside the United States.

We never found out what would happen, however. Padilla prevailed again on remand to a district judge in South Carolina, and then lost before the Fourth Circuit based on a new argument: that Padilla was exactly like Hamdi in that he had borne arms on the Afghan battlefield in late 2001, but simply had been luckier in remaining free until 2002. At any rate, the next stop was the Supreme Court, again, and no small prospect of defeat for the government. Most observers believe this prospect explains why the Bush administration at that stage transferred Padilla back to civilian custody--where he faced criminal trial at long last. Padilla was prosecuted in federal court in Florida on charges relating to his pre-9/11 conduct (going abroad in hopes of joining the jihad movement, in effect), was convicted, and is now serving a prison sentence.

The end of the Padilla litigation did not end the opportunity for courts to struggle with the question of detention authority in the United States. There was one other domestic military detainee in the Bush years, a Qatari man named Ali Saleh Kahlah al-Marri. As in Padilla’s case, the government first used civilian authorities to detain al-Marri after concluding that he might be an al Qaeda agent. As in Padilla’s case, it eventually moved him into military custody. And as in Padilla’s case, the resulting habeas litigation was a mess, with a variety of judges embracing a broad array of different theories. First, the district judge concluded that there was no obstacle to detaining al-Marri, as he was not a citizen and thus the AUMF need not be more explicit in providing for detention in his case. The Fourth Circuit disagreed, however, with the initial panel opinion concluding that as a lawful resident, al-Marri had Fifth Amendment rights, that those rights precluded detention beyond what the law of war might allow in this case, and that the law of war did not permit detention in this circumstance. This in turn led to an en banc banc review by the full court, which splintered wildly across an array of opinions. A slim majority sided with the government, but without a single unifying theory to explain that result. Once more, the Supreme Court might have resolved the matter, and it did grant certiorari in an apparent bid to do so. But following the Padilla path once again, the government--now the Obama administration--transferred al-Marri to the civilian criminal justice system, mooting the issue and leaving the question of detention authority for domestic captures under the AUMF in doubt.

There has been no new case of domestic military detention--whether involving citizens or non-citizens--since those cases from the early years of post-9/11 counterterrorism, nor any clarification of the legal questions that the aforementioned cases raised.

Indeed, the issues involved appeared entirely dormant until Congress took up the question of domestic detention in the course of crafting the National Defense Authorization Act for Fiscal Year 2012. An initial draft of that bill contained a clause that provided for detention authority to extend to citizens and to others within the United States. The language used to accomplish that result was decidedly indirect, but once its meaning became clear, it drew extensive criticism. There was sharp debate in Congress--and more generally--with respect to whether such authority should, in fact, be confirmed, and proposals emerged to reframe the bill to accomplish the opposite result--i.e., clarifying that there is not detention authority in such cases. This proved equally difficult to move forward, so in the end, Congress opted for the easiest course of action: the NDAA FY’12 explicitly states that nothing in the bill should be taken as weighing in one way or the other on the question of domestic and citizen detention.

The net (and intended) effect was to leave in place the veil of uncertainty that had been generated by the combination of the Hamdi, Padilla, and al-Marri decisions of the prior decade. Future presidents were left free to roll the dice by asserting such authority, or not, as they might see fit to try.

What Should Congress Do?

In our view, Congress should put this issue to rest at last by clarifying that neither the AUMF nor the NDAA FY’12 should be read to confer detention authority over persons captured in the United States (regardless of citizenship). The benefits of keeping the option open in theory are slim, while the offsetting costs are substantial.

We say the benefits are slim chiefly because the executive branch has so little interest in using detention authority domestically. The Bush administration had little appetite for military detention in such cases all along, preferring in almost all instances involving al Qaeda suspects in the United States to stick with the civilian criminal justice system. The experiment of military detention with Padilla and al-Marri did little to encourage a different course, given the legal uncertainty the cases exposed. That uncertainty has, in turn, created an enormous disincentive for any administration—of whatever political stripe—to attempt this sort of detention again. A de facto policy thus developed in favor of using the criminal justice apparatus whenever humanly possible for terrorist suspects apprehended in the United States. And whenever humanly possible turned out to mean always; while military detention may remain potentially available as a theoretical matter, it is not functionally available for the simple reasons that (i) executive branch lawyers are not adequately confident that the Supreme Court would affirm its legality and (ii) in any event, they have a viable and far-more-reliable alternative in the criminal justice apparatus.

In September 2010, the Obama administration made this unstated policy official, announcing that it would use the criminal justice system exclusively both for domestic captures and for citizens captured anywhere in the world. In a speech at the Harvard Law School, then-White House official John Brennan stated:

it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts. As they should be. Our military does not patrol our streets or enforce our laws—nor should it.

. . .

Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.

To put the matter simply, military detention for citizens or for terrorist suspects captured domestically, was tried a handful of times early in the Bush administration; the strategy was abandoned; it has been many years since there was any appetite in the executive branch—under the control of either party—for trying it again; and it has for some time been the stated policy of the executive branch not to attempt it under any circumstances. We do not expect any administration of either party to break blithely with the consensus that has developed absent some dramatically changed circumstance. The litigation risk is simply too great, and the criminal justice system’s performance has been too strong to warrant assuming this risk.

But ironically, even as this strong executive norm against military detention of domestic captures and citizens has developed, a fierce commitment to this type of detention has also developed in some quarters. The fact that the norm against detention is not currently written into law has helped fuel this commitment, enabling the persistent perception that there is greater policy latitude than functionally exists. The result is that every time a major terrorist suspect has been taken into custody domestically in recent years—the arrest of Djokhar Tsarnaev is only the most recent example—the country explodes in the exact same unproductive and divisive political debate. To caricature it only slightly, one side argues that the suspect should have been held in military custody, instead of being processed through the criminal justice system; it decries the reading of the suspect his Miranda rights; and it criticizes the administration, more generally, for a supposed return to a pre-9/11 law enforcement paradigm. The other side, meanwhile, defends the civilian justice system, while also demanding the closure of Guantánamo and attacking the performance of military commissions for good measure.

This kabuki dance of a debate is not merely a matter of rhetoric. Separate and apart from the U.S. citizen detention language we described above, in the course of producing the 2012 NDAA Congress also explored the option of mandating military detention for suspects (citizen or not) taken into custody within the United States. The administration resisted these efforts, and the resulting language in conference committee ultimately stopped far short of requiring military detention. The administration further softened the effects of that language, moreover, through its subsequent interpretation of the new language. All of which brings us back to our point: there is a big gulf between the real, functional state of play (in which the criminal justice system provides the exclusive means of processing terrorist suspects captured within the United States) and the perception in some quarters that military detention remains a viable option, perhaps even a norm, for domestic and citizen terrorist captures.

That gulf has real costs. Most obviously, it generates significant political friction every time a major terrorist arrest happens in the United States. It increases the apparent political polarization of an area that should be above politics—and in which the counterterrorism reality is far less polarized than the inter-branch relations over the issue would suggest. And it reinforces the perception that domestic military detention remains a viable option, needlessly alarming those who fear it and needlessly misleading those who wish to see it. The resulting confusion fuels sharp debate over something that is no longer meaningfully an option in functional terms. That debate even spills over at times into litigation, most notably—and disruptively—in the context of the Hedges case in New York (in which journalists and activists persuaded a district judge to enjoin enforcement of detention authority, despite the utter implausibility of the claim that they might be subjected to it).

To be clear, closing off the possibility of the executive branch’s trying such detention again in the future is not without potential costs. Consider the Padilla case once more. Contrary to the mythology that has developed about it over the years, the decision to move Padilla into military custody did not result from some ideological commitment on the part of the Bush administration to domestic military detention or to expanding executive power. It was, rather, a least-bad alternative in a circumstance in which options within the criminal justice system appeared to have run out. Recall that the government initially held Padilla in the criminal justice system. As then-Deputy Attorney General James Comey explained in 2004:

Padilla was arrested by the FBI in Chicago on a material witness warrant authorized by a federal judge in New York. And he was transferred to Manhattan where I was then the United States attorney.

He was appointed a lawyer at public expense. And we set about trying to see if he would tell the grand jury what he knew about al Qaeda.

With time running out in that process, on June 9th of 2002, just about two years ago, the president of the United States ordered that Padilla be turned over to the custody of the Department of Defense as an enemy combatant, where he remains.

. . .

Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right.

He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope—pray, really—that we didn't lose him.

It is certainly possible that we will one day again confront a case in which strong evidence exists that an individual member of an AUMF-covered group poses a huge threat within the United States, but in which the evidence supporting this view is either too sensitive to disclose or inadmissible for any of several reasons. In such a situation, legislation prohibiting the military detention of suspects captured in the United States in theory could precipitate an outcome like the one that Comey feared in 2002. From that perspective, the option of at least attempting to sustain military detention, despite the legal uncertainty we described above, would be attractive.

For a variety of reasons, however, we believe that situation is far less likely to develop today than it was in 2002. Law enforcement practice has improved substantially in this space. The FBI and Justice Department have developed significant expertise in handling suspects like Padilla. And as we mentioned before, one of the reasons the information developed against Padilla was unusable by Comey was that it had been obtained by the CIA using highly-coercive means; those means are no longer in use. None of this eliminates the possibility of a case like Padilla’s developing in the future, of course, but it does suggest that such scenarios are unlikely to arise. Indeed, such a situation has not arisen since the earliest years of the war on terror.

Aside from a Padilla-like scenario, a ban on military detention in domestic capture scenarios thus would foreclose no course of action that is realistically available to the executive branch at this stage given its own preferences. It would, rather, merely codify the existing understanding reflected in executive branch policy and practice—policy and practice reinforced over the years by well-informed expectations about the likely views of the justices on the underlying legal issues.

Adopting such a change, it is worth emphasizing, would run with the grain of America’s traditional wariness when it comes to a domestic security role for the U.S. military. There have unfortunately been times in our nation’s history when it has been necessary and proper for the military to play such a role. It is far from clear that this is the case today, however, given the demonstrated capacity of the criminal justice system in the counterterrorism context.

In the final analysis, we conclude that the manifest legal uncertainty and political friction overhanging the domestic military detention option entail costs that, in our view, outweigh the hypothetical benefits of continuing to leave that option open as a statutory matter. We therefore favor legislation that would clarify that military detention in counterterrorism under the AUMF is not available with respect to any persons--whether United States citizens or aliens--arrested within the United States.

We look forward to addressing your questions.

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Trillions of Dollars in Oil, Gas and Mining Revenue Still Shrouded in Secrecy

Daniel Kaufmann — Mon, 20 May 2013 10:23:00 -0400

Editor's Note: This version references a past event held at the Brookings Institution. The original version can be found on the Huffington Post.

Opacity still prevails in how natural resources are managed. This conspires against economic development. The lives of over a billion citizens could be transformed if their governments managed their oil, gas and minerals in a more open, accountable manner. This emerges from the Resource Governance Index, released by the Revenue Watch Institute at an event at Brookings last week.

The Index measures the transparency and accountability in the oil, gas and mining sector of 58 countries. Together these nations produce 85 percent of the world’s oil, 90 percent of diamonds and 80 percent of copper, generating trillions of dollars annually. The in-depth analysis finds that over 80 percent of the countries fail to meet satisfactory standards in how their natural resources are governed. In these nations, opacity, corruption and weak processes keep citizens from fully benefiting from their countries’ resource wealth, revealing a significant ‘governance deficit’.

There is hope, however. Some countries prove it is possible to lift the veil of secrecy and meet higher standards of transparency and accountability. Eleven out of the 58 countries received satisfactory scores overall, including emerging economies in Latin America. By shedding light on reforming states as well as lessons and solutions, we can reject the tired notion of the deterministic ‘resource curse’.

Each country, from the highly ranked Norway, Brazil and United Kingdom to the poorly performing Turkmenistan and Iran, is judged on four criteria: legal framework, transparency levels, checks and balances, and the broader governance context. Most of the worst performers depend almost exclusively on revenues from natural resources as their main source of income, implying that transparency and accountability is largely missing where it is needed the most (Figure 1). And the Middle East and North Africa, the most resource-dependent region, is the worst performing.

Key American allies are among the poor performing countries. Saudi Arabia ranks 48th out of 58 with failing scores on all four components. Afghanistan, which has received billions in aid from the U.S. and sits atop an estimated $3 trillion of minerals, performs poorly. U.S. companies invest heavily in the oil sectors of poorly rated countries, Angola and Equatorial Guinea. At the same time, our study also finds that wealth is no guarantee for attaining openness and accountability in natural resources as illustrated by Qatar, ranked 54th out of 58.

In fact, there is room for improvement in every nation, including wealthy nations. Canada, the U.S. and Australia also need to ensure their multinational companies do not facilitate the opacity found in many countries where they operate.

Improved management of natural resources could make a major difference in the economic development of many countries. In Nigeria, oil revenues were 60 percent higher than total aid to sub-Saharan Africa in 2011. In Libya, the Central Bank’s $65 billion in reserves are quickly depleting to pay for the government’s deficit spending. Equatorial Guinea has a higher average per capita income than the U.K., yet three-fourths of its population lives under the poverty line.

The Index also assesses 45 state-owned oil and mining companies and 23 natural resource sovereign wealth funds according to their levels of transparency and accountability. Industry heavyweights Statoil, Pemex and Petrobras exhibit high rankings, while the national oil companies of Turkmenistan and Myanmar rank at the bottom. The sovereign wealth funds of Kuwait, Libya and Qatar, which hold an estimated $476 billion in total assets, score among the bottom five.

Improved governance in natural resources is arguably the development challenge of the decade. The stakes are high, so now is the time to act. The annual gathering of the Extractive Industries Transparency Initiative (EITI) is now starting in Sydney, Australia, and in a few weeks the G-8 is holding its summit in Lough Erne, U.K. Government, industry and civil society leaders have an opportunity to advance the reform agenda.

The analysis of our report points to some concrete reforms that are sorely needed, and where EITI and the G-8 could help propel the agenda forward. Specifically:

EITI adoption and G-8 support for full disclosure of extractive industry contracts. Further, the G-8 could encourage the multilateral development banks to incorporate the transparency of extractive industry contracts (in addition to revenues) as a component of their lending programs and technical assistance.
Building on the pioneering Lugar-Cardin provision in U.S. Dodd-Frank legislation and the newly minted agreement in the European Union (EU), the G-8 should endorse both home- and host-country mandatory disclosure standards in line with these new U.S. and EU regulations and support their implementation. In particular, Canada and Russia ought to adopt these standards and ensure that G-20 and emerging economies including Australia, Brazil, China, South Africa and Switzerland follow suit. EITI should also fully align itself with these disclosure standards, helping countries and companies report detailed revenues paid to governments.
Support the disclosure of the beneficial ownership of companies to disclose the real owners of these firms (thereby helping to mitigate corruption and tax evasion), and support a common, public registry to house this data.
Extend transparency and accountability standards to state-owned companies and natural resource funds.
Promote a standardized set of data and indicators as a baseline empirical framework of transparency, measuring and monitoring open, effective resource and revenue management throughout the ‘value chain,’ and commit new funding for the development of institutional resources to support the gathering, analysis and dissemination of key data in resource-rich countries.

Ultimately, the responsibility for improving governance rests mostly with each country, its leadership, companies and civil society. Yet these global initiatives can have a major catalytic effect in supporting reforms at the country level.

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Daniel Kaufmann

Publication: The Huffington Post

Image Source: © Beawiharta Beawiharta / Reuters

Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems

John Villasenor — Fri, 17 May 2013 09:56:00 -0400

Editor's Note: On May 17, John Villasenor testified before the House Judiciary Committee on the important topic of privacy and unmanned aircraft systems, often referred to as drones.

Good morning Chairman Sensenbrenner, Ranking Member Scott, and Members of the Subcommittee. Thank you very much for the opportunity to testify today on the important topic of privacy and unmanned aircraft systems (UAS).^{^[1]}

I am a nonresident senior fellow in Governance Studies and the Center for Technology Innovation at the Brookings Institution. I am also a professor at UCLA, where I hold appointments in the Electrical Engineering Department and the Department of Public Policy. The views I am expressing here are my own, and do not necessarily represent those of the Brookings Institution or the University of California. Portions of my testimony today are adapted from a law review article I recently published in the Harvard Journal of Law and Public Policy.^{^[2]}

UAS, often referred to as “drones,” can be employed in an endless variety of civilian applications, the overwhelming majority of them beneficial. However, like any technology, UAS can also be misused. The most common concern regarding domestic UAS relates to their potential impact on privacy. This is a legitimate concern. Existing laws and jurisprudence provide an important foundation, but they also leave many questions unanswered.

For non-government operators, determining when UAS use violates privacy involves the tension between First Amendment freedoms and common law and statutory privacy protections. With respect to government-operated UAS, the Fourth Amendment is of course central to the privacy question. While the Supreme Court has never explicitly considered warrantless observations using UAS, a careful examination of Supreme Court privacy jurisprudence suggests that the Constitution will provide a much stronger measure of protection against government UAS privacy abuses than is widely appreciated. The Fourth Amendment has served us well since its ratification in 1791, and there is no reason to suspect it will be unable to do so in a world where unmanned aircraft are widely used.

This does not mean that there is no need for additional statutory UAS privacy protections. However, when drafting new laws it is critical to adopt a balanced approach that recognizes the inherent difficulty of predicting the future of any rapidly changing technology. Although unmanned aircraft pose real and increasingly well-recognized privacy concerns, they also offer real and much less widely understood benefits. A dialog conducted with full awareness of this balance will be much more likely to lead to positive policy outcomes.

[1] The acronym “UAS” is also sometimes expanded to “unmanned aerial systems.”

[2] John Villasenor, Observations From Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J.L. & Pub. Pol'y 457 (2013).

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The 'First Sale Doctrine' and Its Impact on the Music Business

John Villasenor — Fri, 03 May 2013 11:16:00 -0400

On March 19, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, a landmark copyright case examining the reach of the “first sale” doctrine. Under that doctrine, the owner of a copy of a work that was “lawfully made” in accordance with U.S. copyright law “is entitled, without the authority of the copyright owner, to sell or otherwise dispose” of it. For instance, if you purchase a lawfully produced music CD or movie DVD in the United States, you are free to later sell it at a garage sale, donate it to a library or loan it to a friend.

But what about goods made and sold overseas and then imported for resale? After all, there is another provision of copyright law that prohibits the importation into the United States, without the authority of the copyright owner, of copies of a work “acquired outside the United States.”

These two potentially contradictory features of copyright law were tested by Supap Kirtsaeng, who built a business around importing textbooks that had been lawfully made and sold overseas and then reselling them at a profit in the United States. After publisher John Wiley & Sons filed suit against Kirtsaeng in 2008, a federal district court found that his actions infringed Wiley’s copyrights, and the Second Circuit affirmed. However, the Supreme Court reversed these decisions on March 19, holding that the first sale doctrine “applies to copies of a copyrighted work lawfully made abroad.” The ruling will make it very difficult for sellers of physical goods like music CDs to price the same products differently in different markets.

So what will this mean for music sales? In an amicus brief filed in the case, the RIAA and Motion Picture Assn. of America warned against exactly the decision the Supreme Court has now made, stating it “would undermine the copyright protection on which artistic fields like the motion picture and music industries depend for their economic viability” and “have deleterious consequences for the U.S. economy as a whole.”

The Supreme Court’s Kirtsaeng decision undeniably weakens the power of copyright holders. But it’s a bit of a stretch to suggest that the entire U.S. economy might suffer significant harm as a result. In fact, the negative impact on music copyright holders will likely be far more modest than some people expect. Why? Because the first sale doctrine applies to sales. By contrast, music download and cloud-based access services can be delivered using licenses that allow copyright holders to retain a much higher level of control over use of the work.

Not all licenses, however, are equivalent. For example, ReDigi has built an online digital music marketplace based in part on its belief that the iTunes terms of sale, in contrast with the terms of use for Amazon’s online music store, provide for a transfer of title that allows iTunes customers to resell their songs. Whether that interpretation carries the day will depend on the outcome of an ongoing lawsuit filed against ReDigi by Capitol Records in a New York federal district court.

More generally, it is certainly possible -- and very common -- to design licenses in which customers do not become owners of a copy of a song. Under such licenses, music copyright holders can and routinely do impose restrictions on resale and geographic portability. Whether these sorts of restrictions are well matched to the ways in which people and information move in today’s world is a debate for another day. But as profoundly important as Kirtsaeng is for copyright in the broader sense, it may have little impact on a music ecosystem increasingly built around licensing-based approaches for distributing “purchased” content.

Authors

John Villasenor

Publication: Billboard

Image Source: © Siphiwe Sibeko / Reuters

Can Egypt’s Transition and Economy Be Saved?

Hafez Ghanem — Wed, 01 May 2013 12:19:00 -0400

The Egyptian economy is unlikely to collapse suddenly. However, in the absence of a serious macroeconomic stabilization program it will continue to deteriorate gradually, with low growth and increasing unemployment and inflation. Even corruption appears to be on the rise. The Egyptian people are also feeling the pinch in terms of higher prices and shortages of some imported necessities. If this continues, the transition to democracy could be jeopardized. On the other hand, politics in Egypt is so polarized that it is difficult to see how serious economic reforms could be implemented without first reaching compromises on some thorny political issues. Perhaps the recent agreement on a coalition government in Italy could serve as a model for Egyptian politicians.

There are signs that the democratic transition is in danger. Loud grumblings can be heard all over Egypt. There is even nostalgia for autocratic rule and some are calling for a return of the military. According to the Pew Center’s “Global Attitudes Project” more than 70 percent of Egyptians are unhappy with the way the economy is moving, 33 percent feel that a strong leader is needed to solve the country’s problems, and 49 percent believe that a strong economy is more important than a good democracy. The number of people disillusioned with the revolution is likely to increase as the economy weakens further.

In addition to freedom and dignity, the young people who started the Egyptian revolution on January 25, 2011 were demanding better living conditions and greater social justice. Their demands are far from being met as economic growth has declined and unemployment has risen (figure 1). Industrial growth which was at a healthy 5-7 percent a year before the revolution has fallen to about 1 percent, and the official unemployment rate rose from 9 to 12.5 percent. About 95 percent of the unemployed are youth with at least a secondary education. Nearly three-quarters of those who are lucky enough to find jobs end up working in the informal sector where wages range between $2.60-3.70 per day.

The Egyptian government’s fiscal policy has not been conducive to growth and employment generation. Figure 1 shows that the government deficit rose from about 8 percent of GDP in 2010 to nearly 11 percent in 2011. It could exceed 12 percent of GDP in 2013. The increasing deficits have been financed almost entirely domestically, and the public domestic debt rose from some 60 percent of GDP in 2010 to 70 percent in 2012. At some point in 2012, the Egyptian government was paying 16 percent interest on its short-term domestic debt. That is, the government has been sucking liquidity from the domestic financial system and crowding out the private sector; discouraging investment, growth and employment creation.

Surprisingly, corruption seems to have increased after the revolution. Ending corruption has been a key demand of the revolutionaries, and the country witnessed more than 6,000 corruption investigations and several high profile incriminations since February 2011. Investigations and police action send a political signal, but they do not constitute an effective anti-corruption program. In 2010, Egypt was ranked 98th on Transparency International’s Corruption Perception Index. Its ranking deteriorated to 112th in 2011 and 118th in 2012. Data for 2011 from the Worldwide Governance Indicators (WGI) also shows deterioration in corruption control. The WGI 2012 data is not yet available.

Falling tourism and foreign direct investment, together with increasing capital flight, led to a decline in foreign reserves from more than $35 billion in 2010 (covering 7 months of imports) to less than $15 billion in 2012, which covers less than three months of imports (figure 2). As a result foreign exchange has become scarce and the Egyptian pound started depreciating rapidly. It has depreciated against the US dollar by about 15 percent in the past three months. Moreover, a black market in foreign exchange has emerged. In addition, Egypt’s credit rating suffered a setback as Moody’s downgraded Egypt’s debt to “caa”, which means it is of poor standing and entails very high risk.

Imports are becoming more expensive and increasingly difficult to procure. Egypt is highly dependent on the imports of many necessities, including food and fuel. The Egyptian pound’s depreciation means that domestic prices for imports are rising; which affects millions of poor and middle class families. Scarcities of some imported goods (e.g. diesel fuel) are appearing as foreign exchange is increasingly difficult to obtain, and foreign banks are wary of providing credit to Egyptian importers. Some businessmen complain that it now takes more than six weeks to open a letter of credit, while it only took three days before the revolution.

It’s clear that Egypt is facing an economic crisis, and needs to implement credible reforms to stabilize the economy, control corruption, and lay the foundations for inclusive growth. Such reforms would normally include a reduction in the fiscal deficit to bring the domestic debt under control and a further depreciation of the Egyptian pound to encourage exports and tourism. The Egyptian government is negotiating with the IMF to obtain support for such a stabilization program. IMF support is desirable because it would open the doors for increased assistance from other bilateral and multilateral donors, and thus help ease the pain of stabilization.

But macroeconomic stabilization requires implementing unpopular measures such as reducing subsidies and raising taxes. The government, which is already facing stiff opposition and unrest, is, understandably, reluctant to adopt such measures. It has so far been able to postpone difficult decisions by getting exceptional financial support from regional allies. However, this has not been enough to turn the economy around.

The Egyptian government appears to be in a no-win situation. Implementing reforms could lead to greater unrest and political instability and jeopardize the democratization process. On the other hand, doing nothing will imply a deepening economic crisis and more hardship. This will also lead to unrest and instability, and ultimately jeopardize the transition process.

How then can Egypt’s transition be saved? A national consensus needs to be reached and the reforms have to be broadly owned and accepted. The opposition (which itself is divided between liberals, Nasserists and Salafists) will have to buy into the economic reform program. This is unlikely to occur unless a consensus is also reached on outstanding political issues (e.g. election law, revision of the constitution, reform of the judiciary, etc.). Both government and opposition will have to make compromises. But do they have the required level of political maturity to do that?

Authors

Hafez Ghanem

Image Source: © Asmaa Waguih / Reuters

Tech Transfer Policy: Bayh-Dole has Distributional Consequences

Walter D. Valdivia — Fri, 26 Apr 2013 08:59:00 -0400

Editor’s Note: This article first appeared in Innovation: America’s Journal of Technology Commercialization (April/May 2013; Volume 11, Number 2).

The sequester will have a negative effect on federal R&D of $9.6 billion, that is about a 7 percent cut with respect to the 2012 budget. These cuts will renew the urgency of figuring out how to maximize the social return on public R&D investments. That is a complex question because social returns are not only a function of the pace of innovation but also depend on how the benefits of innovation are distributed across society. Federal agencies that fund research as well as universities and national laboratories have an important role to play here. Not only can they rebalance their research portfolios but also they can improve technology transfer—the dynamic exchange of knowledge between research organizations and the private sector.

One important channel for technology transfer is patenting and the licensing of those patents to industry. These activities are primarily regulated by the Bayh-Dole Act of 1980. Think privatization of public assets where the assets are public patents—patents derived from federally funded research. The act introduced in this way the profit incentive to develop commercial products from public research. Under this act, the research contractor (generally a university or national laboratory) can take title to patents and to subsequently license those patents to private companies or other agents with the only proviso that the licensee takes reasonable efforts to practice the patent, that is, to develop it into a practical application.

The ostensible goal of Bayh-Dole was precisely to maximize the social benefit of federal R&D investments. We must then ask if this policy has delivered and if taxpayers are receiving a social return commensurate to their investment in research. The answer is inconclusive. There is some evidence that the translation of federally funded research into market products has increased but Bayh-Dole has also had unanticipated consequences—patenting has moved upstream to research tools creating what legal scholars Michael Heller and Rebecca Eisenberg have characterized as the tragedy of anticommons. In addition, it is not at all clear how widely the benefits of public patents have been distributed. Therefore, a fair assessment of Bayh-Dole must address at least two questions: Are the unanticipated consequences undercutting efficiency gains? And, are social returns from innovation concentrated or broadly distributed?

Regarding efficiency, a concern of the first order is that universities are patenting research tools. Scientific research is a collective effort that requires an active intellectual exchange at the outer boundaries of knowledge. Among the goods traded there are research tools, materials, and data. The patenting of reagents, cell lines, chemical compounds, raw datasets and other materials and the strict enforcement of those patents poses the risk of slowing down innovation at the headspring. A sensible answer to this problem would be to modify the statute to allow an exemption for non-profit research institutions. The exemption must at least apply to public patents. Universities and laboratories wanting to negotiate exclusive licenses on research tools would then be required to demonstrate that such an arrangement is in the interest of science and the public good. Complementing this solution, federal research contractors could benefit greatly from organizing a system-wide consortium for sharing research tools. This patent pool, chartered as a not-for-profit organization, would guarantee access to its patents (or at least patents on research tools) to all its members at fair licenses fees.

Beyond efficiency, there is an equity concern. That a public patent is developed into a product doesn’t directly imply maximum social benefit. If a new product is priced so high that only very few people can afford it, the social return will be minimal. Consider the effect of innovation in the pricing of drugs. If pharmaceutical companies are allowed to charge as high prices as they wish, only patients with prescription drug coverage in their health insurance will afford new medicine. If health insurance is universal, the effect will be deleterious for society because insurance prices will have to keep pace with drugs prices. A good indicator of the social return on public investment in biomedical research is therefore affordability. Amidst budget cuts and inflationary pressure on prescription drugs, policymakers are taking this issue seriously; for instance, Senator Ron Wyden (D-OR) has recently asked the NIH to “revisit the idea of striking a better balance between encouraging profit, innovation, accessibility and affordability.”

If public patents are a steady source of innovation in the biomedical sector, pricing excesses should be disallowed or at least regulated. Let’s be clear that companies that take a public patent and commit significant resources to its development are justly entitled to recoup their investments and even to retain a profit margin. But they did not incur in the full back-to-back investment—they did not invest in the expensive portfolio of blue-sky research out of which one program resulted in the patent they have come to license—it was the taxpayer that incurred in that high-risk investment. Put shortly, companies cannot assume a right to maximum profit when selling products based on public patents.

Federal agencies should be empowered, under Bayh-Dole, to promote competitive markets in high-tech sectors. One area where this can be done is defining better the conditions for exclusive licenses. While exclusive licenses are well justified in the case of start-up companies—they use these intangible assets to raise investment capital—the same rationale does not hold for large companies with high liquidity or easy access to credit. This kind of safeguard was part of the original intent of the act; Bayh-Dole originally limited to five years exclusive licenses for large companies. Another safeguard is the march-in rights provision. Federal agencies retain a royalty free license to all public patents and they can practice their licenses if the private sector shows no active effort to develop the patents or to satisfy public health and safety needs. Executive action should allow federal agencies to apply this provision to curb pricing excesses, for instance by linking need to affordability. The sole threat of intervention would curb pricing while still allowing companies to make some profit.

Congress and the federal government can help universities and national laboratories maximize the social returns of research by encouraging licensing practices that ease scientific collaboration and by curbing pricing excesses.

Authors

Walter D. Valdivia

Publication: Innovation

President Obama’s Visit to Mexico: Key Anti-Crime Issues

Vanda Felbab-Brown — Fri, 26 Apr 2013 11:57:00 -0400

Up to two weeks ago it looked like President Barack Obama would be going to Mexico with a very strong hand. Had the gun control measures, which the Obama administration pushed as one of its key domestic issues in the second term, passed in the U.S. Congress, the U.S. President could have arrived in Mexico next week having delivered on a sticky bilateral issue: For more than a decade, successive Mexican presidents have been demanding greater weapons checks and tighter gun control from the United States, with the hope that such measures would reduce the excruciatingly high criminal violence in Mexico.

Mexico’s other long-term demand has been immigration reform: increasing legal job opportunities for Mexican workers, reducing deportations, and allowing Mexican families to travel and connect without great personal security and legal risks. President Obama might yet be in a position to remove the immigration thorn from the U.S.-Mexico bilateral relationship. Clearly, any immigration reform will not pass before he goes to Mexico next week. But he can credibly indicate that his administration has made immigration reform a key domestic priority and that there is more congressional movement on immigration, including on offering a path to citizenship to the millions of undocumented migrants living in the United States, than there has been in years. And at least until the Boston terrorist attacks, it appeared that immigration reform would finally pass in the U.S. Congress. Those opposing immigration reform or demanding a tightening of borders and fail-proof screening that cannot realistically be achieved, are seizing on the Boston attacks as an excuse for derailing the immigration reform legislation. But the prospect of reform is still very much alive.

In addition to gun control and immigration, Mexican President Enrique Peña Nieto will want to talk economics. Upon assuming office last year, he announced that he would like to break out of the Mexico-U.S. relationship being captured in the prism of the drug trade violence and collapsed into anti-crime cooperation, and to have the relationship refocus on global and bilateral trade and energy issues.

But security issues will inevitably be on the agenda, and the discussions may not be easy. For a long time, Washington was suspicious that if the Institutional Revolutionary Party (PRI) which President Peña Nieto leads returned to power, it might be tempted by its old ways —again lessening Mexico’s determination to tackle organized crime and its penetration into Mexico’s law enforcement and administrative institutions and its grip on large segments of Mexico’s society. Since being elected, President Peña Nieto has repeatedly disavowed any negotiations with criminal groups, but he has also maintained that the priority for his government will be not to disrupt drug flows to the United States (as his predecessor President Felipe Calderón sought to do), but to minimize the terrible drug violence in Mexico. Both the reduced focus on disrupting drug flows and the new emphasis on reducing violence, especially should it lead to changed interdiction and targeting patterns in Mexico, might be difficult to sell to Washington and would require the United States to abandon some of its established, albeit often ineffective and counterproductive, international anti-crime and anti-drug policies.

For its part, the new Mexican government has been surprised and made uncomfortable by the extent and tightness of U.S.-Mexico anti-crime cooperation that was established during the Calderón years. Not only has much of the strategic and tactical intelligence for interdiction and other anti-cartel operations come from the United States, but also, and in an unprecedented way, U.S. advisors have become intimately involved in helping to design and shape tactical interdiction operations of several Mexican entities used for anti-cartel law enforcement as well as in reforming law enforcement institutions in Mexico. Conscious of sovereignty, eager to establish tight control of these security institutions, and seeking to redirect Mexico’s security policy to reducing violence, the Peña Nieto administration has been mulling over whether or not and how to shape U.S.-Mexico security cooperation. It needs to take care not to throw the baby out with the bath water. U.S. cooperation, including intelligence provision and law enforcement reform assistance, continue to be greatly valuable for Mexico, and Mexico is hardly in the position to do without them.

For its part, Washington needs to recognize that seeking to reduce criminal violence, including killings, kidnappings, and extortion, is the right priority for Mexico, and indeed, should be a key goal for law enforcement in any country. The United States should wholeheartedly support that objective in Mexico. But achieving violence reduction in Mexico will not be easy, as President Peña Nieto and his security team have already learned in their first six months. Major questions remain about the details, operationalization, and actual implementation of the security strategy Peña Nieto has outlined. As I detail in my report Peña Nieto’s Piñata: The Promise and Pitfalls of Mexico’s New Security Policy against Organized Crime, many components of the new strategy, such as the organizational reshuffle of Mexico’s security institutions, the establishment of a new gendarmerie, or even the youth-crime prevention focus (important as the last element is for any sustainable long-term strategy to reduce criminality) do not easily, quickly, and directly translate into violence reduction in Mexico.

Paradoxically, the policy that is most directly available to Mexico to reduce criminal violence is the one for which it needs the most cooperation from the United States: changing targeting patterns. Instead of deploying the Mexican military or federal police or the gendarmerie (whenever it will actually become available) merely in response to wherever violence intensely breaks out and making cartel capo decapitation the core of its strategy, Mexico needs to prioritize targeting in a way that will reduce violence. That means abandoning both top-level decapitation and reactive deployment of forces. Instead, a wiser interdiction pattern would be more selective and based on an analysis of which law enforcement actions will stimulate what responses and actions from and among the criminal groups. The changed interdiction pattern can include focusing on the most violent group in a particular area and focusing on the middle layer, as opposed to the top capos, of a cartel. As I also explain in another report, Focused Deterrence, Selective Targeting, Drug Trafficking and Organized Crime: Concepts and Practicalities, strategically choosing the basis of prioritized targeting and moving away from interdiction based only ad hoc on how intelligence becomes available requires careful calibration and an uneasy balancing of the pros and cons of each possible option for prioritized interdiction. It often entails uneasy tradeoffs.

Nonetheless, Washington should not define the prioritized interdiction approach (which can mean not vigorously going after some groups for a while) as yet another manifestation of the corruption of Mexican law enforcement institutions by organized crime groups. In turn, explaining to the United States that prioritizing law enforcement actions is smart policy, not weakness and corruption, requires that Mexico maintains extensive discussions with Washington.

What in the long term will increase the rule of law in Mexico is ensuring that communities obey laws, by increasing the likelihood that illegal behavior and corruption will be punished via effective law enforcement, but also by creating a social, economic, and political environment in which the laws are consistent with the needs of the people and allow citizens to embrace their police forces and state presence. Reducing criminal violence is a key element. Adopting a smarter interdiction pattern is an important first step.

Authors

Vanda Felbab-Brown

Image Source: © Kevin Lamarque / Reuters

An Examination of the Judicial Conduct and Disability System

Russell Wheeler — Thu, 25 Apr 2013 13:30:00 -0400

Editor's Note: Russell Wheeler testified before the House Judiciary Subcommittee hearing on the federal judicial conduct and disability system on April 25, 2013. The Judicial Conduct and Disability Act of 1980 authorizes any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The text which follows is Russell Wheeler's opening statement.

Chairman Coble, Ranking Member Watt, Vice-Chairman Marino, and members of the Subcommittee: Thank you for this opportunity to testify at this oversight hearing examining the federal judicial conduct and disability system, and thank you for the oversight itself. Proper legislative oversight of the other two branches is a vital part of the checks and balances embodied in the Constitution. By way of summary, I believe the judicial branch is doing, overall, a very good job of administering the Act, which largely involves sifting through a high number of insubstantial and often frivolous complaints to find the few that justify further investigation.

Since September 2005, I have been a Visiting Fellow in the Brookings Institution’s Governance Studies Program and president of the Governance Institute—a small, non-partisan, non-profit organization that since 1986 has analyzed various aspects of interbranch relations. In both positions I have been especially interested, among other things, in various aspects of judicial ethics regulation.

Before assuming these positions I was with the Federal Judicial Center, the federal courts’ research and education agency, serving as Deputy Director since 1991. While at the Judicial Center and for about a year at Brookings, I assisted the six-member Judicial Conduct and Disability Act Study Committee, appointed in May 2004 by Chief Justice William H. Rehnquist and often referred to as the “Breyer Committee,” after its chairman, Associate Justice Stephen G. Breyer. The committee—Justice Breyer, two former chief circuit judges, two former chief district judges, and the Chief Justice’s administrative assistant— reported to the Judicial Conference of the United States in September 2006,[1] after which a renamed Judicial Conference Judicial Conduct and Disability Committee developed new, mandatory rules governing the processing of complaints, rules that the Conference approved in March 2008. [2]

Credit for the report and the subsequent rules goes in part to the House Judiciary Committee and its then-chairman, Representative F. James Sensenbrenner, who called attention in early 2004 to what he regarded as an improper dismissal of a judicial conduct complaint he had filed (the Breyer Committee subsequently agreed that the dismissal was improper)[3]. Chief Justice Rehnquist said in announcing the committee appointments, “There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act ... is being implemented, and I decided the best way to see if there are any real problems is to have a committee look into it.”[4]

The relatively few problems highlighted by the Breyer Committee, and the process enhancements in the 2008 rules, have no doubt led to improvements in how the federal courts handle complaints filed under the Act, although, as the Committee report documented, the courts had already been doing, overall, a very good job. In this statement, I describe the Breyer Committee’s methods and principal findings, and then offer a few fairly modest suggestions to strengthen further the judicial conduct and disability system.

The Breyer Committee and Its Work

At the outset, let me make very clear that I speak only for myself and in no way claim to speak for the Breyer Committee (which went out of existence after it filed its report) or for any former members of the committee or its small research staff (or, for that matter, for my two current affiliations).

What it did Working with two Judicial Center researchers and one from the Administrative Office of the U.S. Courts (and me as a coordinator of sorts), the committee selected two samples of complaints terminated from 2001-03: a 593-complaint sample, selected to overrepresent complaints most likely to have alleged behavior covered by the Act (e.g., the sample included a larger percentage of complaints filed by attorneys than in the initial unmodified sample and a lower percentage of complaints filed by prisoners) and a separate sample of 100 terminations drawn totally at random. It also identified 17 complaints terminated from 2001 to 2005 that received press or legislative attention—“high visibility complaints”.[5]

The research staff reviewed the 593 complaints and terminations to identify “problematic” terminations, based on committee-approved definitional standards[6] and after committee review of a subset of initial staff reviews to ensure the staff was applying the standards as the committee wished. The committee members alone reviewed the smaller 100-case sample without staff assistance. (The various forms for reviewing the complaints are in the report appendices.)

The purpose of both reviews was not to determine if the subject judges had committed misconduct or displayed performance-degrading disabilities but rather to assess whether chief circuit judges and judicial councils applied the statute as intended—mainly whether the chief judge conducted a “limited inquiry” (as the Act authorizes) sufficient to justify dismissing the complaint or concluding the proceeding, but not an inquiry that invaded the investigatory role reserved for a special committee.

Finally, staff, using survey instruments approved by the committee, interviewed current former chief circuit judges and staff.

What it found The committee concluded that 3.4 percent of the 593 stratified sample of terminations were problematic, as were 2.0 percent of the terminations in the 100 straight random sample complaints (not surprising given the larger sample’s oversampling of likely meritorious complaints). The Committee found a greater proportion of problematic dispositions among the high-visibility complaints (five of the seventeen), which it attributed to those complaints’ greater likelihood to confront the chief judge or circuit council with more decisions, and thus a greater chance of at least one incorrect decision. The Committee expressed concern that these five problematic dispositions could take on outsize importance because of their visibility, and convey an inaccurate impression to the public and would-be filers of the Act’s effectiveness.

To be clear, this was a methodologically rigorous analysis that let the chips fall where they may. (The non-partisan American Judicature Society praised the report for “not hiding the federal judiciary's dirty linen in the closet,” and for “thoroughly discuss[ing] situations in which the judiciary's performance was deficient [and] the causes that may be responsible”.[7]) The committee imposed strict—some might even say too strict—criteria in its review of the terminations it assessed. For one example, a complaint by a prisoner alleged that the person on the bench in a hearing in his case was a young man, probably the judge’s intern, not the judge. The judge informed the chief circuit judge that he had no intern at the time of the hearing and his law clerk was a middle-aged woman, after which the chief judge dismissed the complaint. The committee characterized the allegation as “bizarre, [but] not so outlandish as to be what our Standard 4 calls ‘inherently incredible,’” and classified the disposition as problematic because the chief judge did not obtain, or order his staff to obtain, the electronic recording of the proceeding to verify that the voice on the tape was that of the judge.[8]

These findings suggest that, despite occasional problematic dispositions, proper administration of the Act is by and large engrained in the culture of federal judicial administration. One might ask whether a replication of the research conducted on a more recent sample of cases would find the same low level of problematic dispositions. Obviously, we cannot know that without the replication itself, but there are reasons to suspect that such a replication would find performance at least as favorable as that found by the committee. One reason is the mandatory committee rules and the tougher enforcement and oversight regime they mandate. Also, though, the Breyer Committee findings track very closely those of an earlier study, conducted in 1991-92, using the same basic methodology, for the statutory National Commission on Judicial Discipline and Removal, chaired by former Congressman Robert Kastenmeier. The earlier study used only one modified random sample (of 469 complaints) and found a 2.6 percent problematic disposition rate (compared to the 3.4 percent that the Breyer Committee found in its 593-case sample). The difference is not statistically significant.[9]

Informal discipline outside the Act Finally, the committee interviews tracked a widely shared view within the federal judiciary, namely that informal resolution of misconduct and disability, perhaps in the shadow of the Act, is more extensive than resolutions that result from formal complaints. This is especially so as to performance-degrading disability, which is rarely the basis for complaints under the statute.[10]

Committee Recommendations and Additional Steps

The Committee offered twelve recommendations, principally to provide additional information to chief judges and councils including a vigorous role for the Conduct Committee; to provide additional information about the Act to potential users; and to enhance publically available information about the Act and its implementation. The judicial branch, mainly through the new rules, has adopted many of the recommendations. I am also aware of Professor Arthur Hellman’s specific proposals to improve the implementation of the Act, mainly in the areas of transparency, disqualification of certain judges in judicial conduct proceedings, and review of chief judge and council orders. Professor Hellman is probably the country’s leading expert on the federal judicial and disability system. In general I share his concerns and endorse his proposals, and add here only a few additional comments.

The role of the Conduct Committee The Act is clear that the chief judge, upon receipt of a complaint, may undertake a “limited inquiry” but “shall not undertake to make findings of fact about any matter that is reasonably in dispute.”[11] A complainant may appeal a chief judge’s dismissal order to the judicial council, but a judicial council’s “denial of a petition for review of the chief judge’s order shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.”[12] Perhaps because of some reported instances in which chief judges appear to have dismissed complaints after making findings of fact of matters reasonably in dispute—dismissals affirmed by the respective judicial council—Rule 21 seeks, in the words of its commentary, “to fill a jurisdictional gap.” It authorizes the Conduct Committee to consider, on petition of a dissenting council member or on its own initiative, whether the chief judge should have appointed a special committee. This is an important role for the Conduct Committee, even if it would be needed rarely. I tend to agree with Professor Hellman that a statutory change would help to clarify the Conduct Committee’s authority in such situations, rare as they may be.

In a related vein, the Breyer Committee recommended that the judicial branch monitor the Act’s administration periodically, but doubted that “a full-blown replication of our research would be necessary each time. This was a labor-intensive process for us, for our staff, and for the judges and supporting personnel in the circuits.”[13] The Conduct Committee has taken an important step in this direction by examining of some of the universe of terminations it receives from the circuits and doing so in a manner the highly respected Committee chair, Judge Anthony Scirica, characterizes as similar to the Breyer Committee’s review. Just as the Breyer Committee published summary data on its review of the terminations it examined and explained why some terminations were problematic, the Conduct Committee might release similar periodic summary analyses.

Providing information on how the Act has been interpreted The commentary to Rule 3 states that the “responsibility for determining what constitutes misconduct under the statute [“conduct prejudicial to the effective and expeditious administration of the business of the courts,” 28 U.S.C. § 351(a),] is the province of the judicial council of the circuit subject to such review and limitations as are ordained by the statute and by these Rules.”

The judicial branch needs a transparent way of accessing the decisions of the judicial councils (and chief judges) in order to allow chief judges, council members, and other process participants and observers a means of identifying and assessing the determinations the councils are making—accessing what some have called the common law of judicial misconduct and disability.

One of the Breyer Committee’s main recommendations was for selected orders to be posted on the judicial branch website “in broad categories keyed to the Act’s provisions, and . . . with brief headnotes.”[14] This recommendation is embodied to a degree in the Rules’ promise that the Conduct Committee “will make available on the Federal Judiciary’s website . . . selected, illustrative orders, appropriately redacted, to provide additional information to the public on how complaints are addressed under the Act.”[15] The Conduct Committee’s forthcoming on-line Digest of Authorities can make a valuable contribution to this end.

The Act itself also requires each circuit to make available in the court of appeals clerks office all written orders implementing the Act’s provisions.[16] The Rules bolster that provision by suggesting the courts’ websites as an optional form for making the orders public, and, in terms of transparency and ease of access, website postings are obviously the better option.[17] A preliminary review of circuit practices as I prepared this statement suggest that these circuits do so[18]:

First	All orders from 2008 following, ranging in number from 14 to 45 per year.
Seventh	All orders since 2011 (93 in 2012, for example) with earlier years available on website archives.
Ninth	794 orders, from 2006 and later
Tenth	About 500, since January 2008
DC	Orders from 2011-2013 (53, for example in 2012)

Two other circuits (the Second and Fifth) have posted a small number of orders in high-visibility complaints, and the Federal Circuit has posted 24 orders from 2008, 2009, and 2010.

These postings are surely a positive, if incomplete, step. At the risk of sounding unappreciative of the posting circuits’ efforts, however, analyzing the orders, to compare dispositions of similar complaints, or to assess how different chief judges and councils define or interpret the statute and the governing rules, would require wading into an undifferentiated mass of orders (including routine council orders affirming chief judge dismissals), identified only by date, case number, and, in some circuits, a generic description (e.g., “Order, Chief Judge” or “Order, Judicial Council”). A more helpful typology is necessary (along with indicating the page length of each order as a rough way to identify non-routine orders).

Enhanced orientation for chief circuit judges

The Breyer Committee recommended an individual, in-court orientation program for each new chief circuit judge, provided by an experienced current or former chief judge and a member of the Administrative Office General Counsel’s office who staffs the Conduct Committee, and that the Federal Judicial Center develop a common core curriculum for the program to promote uniformity in the Act’s implementation. The recommendation, along with others, for on-tap resources, was designed to ensure “‘that the chief judge is not out there alone’.” [19] I do not believe the Conduct Committee to date has requested the Federal Judicial Center to develop such a program, or some other program toward the same end. It is worth exploring, however, whether the Center is in a position to develop and administer such a program and curriculum, and whether the Conduct Committee perceives a need for it in light of the other steps it is taking in its advisory role.

Providing information on the Act to potential users The courts, based on my most recent and admittedly non-exhaustive review have done a fairly good job with another transparency-related Breyer Committee recommendation, namely making information readily available on court website about the Act and how to file a complaint. Not all courts that post such material place it on the homepage, as the Committee recommended,[20] but for the most part I do not believe the information is hard to find. The Judicial Conference Committee on the Judicial Branch, under its former chair, Judge D. Brock Hornby, and current chair, Judge Robert A. Katzmann, with the assistance of its Administrative Office staff, has aggressively reminded the courts of the Rules requirements for such posting.[21] The Breyer Committee found, in 2006, only marginal compliance with a previous suggestion for such posting, and found that those courts that were posting the information on their websites did not experience a greater proportionate number of filings.[22] It accompanied its recommendation with a suggested paragraph warning would-be filers that the chief judge would dismiss their complaint if it related to the merits of an underlying decision, and a fair number of courts appear to have adopted that suggestion.

* * *

Thank you for the opportunity to testify this afternoon. I will do my best to answer any questions you may have.

[1] “Implementation of the Judicial Conduct and Disability Act of 1980, A Report to the Chief Justice,” (Sept, 2006), available at http://www.fjc.gov/library/fjc_catalog.nsf/autoframepage!openform&url=/library/fjc_catalog.nsf/DPublication!openform&parentunid=C6CA3DC8B22AC2D78525728B005C9BD3

[2] Available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/Misconduct/jud_conduct_and_disability_308_app_B_rev.pdf

[3] See report, id at note 1, at 73-75.

[4] Id at 131.

[5] Id at 39ff.

[6] Id at Appendix E, 144ff.

[7] “Politics and Progress in Federal Judicial Accountability,” Judicature (Sep’t., Oct., 2006), available at http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=530

[8] Id at 53.

[9] Id at 95ff.

[10] Id at ch. 5.

[11] 28 U.S.C. §352(a)

[12] 28 U.S.C. §352(c)

[13] Report at 123.

[14] Id at 117.

[15] Rule 24(b).

[16] 28 U.S.C. §360(b)

[17] Rule 24(b)

[18] The orders are available at these links:
http://www.ca1.uscourts.gov/?content=judicialmis.php;
http://www.ca2.uscourts.gov/judmisconduct.htm;
http://www.ca5.uscourts.gov/JudicialMisconductOrders.aspx;
http://www.ca7.uscourts.gov/JM_Memo/jm_memo.html;
http://www.ce9.uscourts.gov/misconduct/judicial_misconduct.html;
http://www.ca9.uscourts.gov/misconduct/;
http://www.ca10.uscourts.gov/misconduct.php;
http://www.cadc.uscourts.gov/internet/misconduct.nsf/DocsByRDate?OpenView&count=100;
http://www.cafc.uscourts.gov/judicial-reports;

[19] Report at 113

[20] Report at 120-21.

[21] Rule 28

[22] Report at 33

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Russell Wheeler

Publication: House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

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Era of Big Oil Secrecy is Over

Daniel Kaufmann — Wed, 24 Apr 2013 15:49:00 -0400

Earlier this month, the European Union (EU) took a decisive step towards transparency: It agreed to mandate publicly-listed European companies as well as large private firms to disclose their payments to governments for oil, gas and mining projects. This transparency is crucial in the fight for better governance of resource-rich countries. It will empower citizens with information about the amount of money their governments receive, helping them to monitor how this money is ultimately used and to deter corruption.

Opacity has long ties with corruption, and both are detrimental to growth. Our research shows that countries that control corruption and improve governance can triple their incomes per capita in the long term - a 300% dividend. As seen in the figure, this good governance dividend also applies to countries rich in natural resources.

The benefits of transparency dwarf the cost of disclosure. Today about 40 percent of the 1.7 billion people in resource-rich countries live in poverty, making less than $2 a day. Such poverty in the midst of immense resource wealth is due to low standards of governance and transparency, a critical issue for which oil and mining companies are also responsible.

The EU rules are part of the international community’s response to the opacity challenge, and are modeled after U.S. rules the Securities and Exchange Commission (SEC) released last August to implement the Cardin-Lugar amendment of the 2010 Dodd-Frank Act.

This move towards mandatory disclosure in two of the world’s largest capital markets signals what European Commissioner Michel Barnier has called a “new era of transparency.”

BIG OIL BATTLES NEW RULES

The emergence of this new global standard, however, does not mean the campaign for revenue transparency is over. While the transparency train has clearly left the station, not everyone is on board. Major multinational oil companies have been trying to water down these requirements on both sides of the Atlantic. These companies have put their reputations in jeopardy by backing the American Petroleum Institute (API) in its lawsuit against the SEC to stop implementation of the U.S. rules. Now that the EU has joined the drive for disclosure, Big Oil faces a major problem in its assault on transparency.

The new EU disclosure deal undercuts a number of API’s arguments. API’s inflated estimates of compliance costs are now increasingly irrelevant, as major cross-listed companies, like Shell and BP, will have to comply with EU rules regardless of the lawsuit’s outcome. API’s claims that the SEC acted arbitrarily by adopting the U.S. rules - already questionable given that Congress mandated the rules and the SEC conducted an exhaustive public comment process during its rulemaking - are also undermined by the EU’s agreement to adopt very similar measures. The EU legislation will, in fact, encompass more than the U.S. rules as it covers large, privately held companies (and the timber sector), in addition to publicly listed companies.

And API’s argument that the rules cause competitive harm is even less compelling since the EU will apply analogous rules to companies under its jurisdiction, helping to level the playing field. Together, the U.S. and EU regulations will cover capital-markets listed companies, accounting for nearly 70 percent of the market capitalisation of extractive industry firms on the world’s most significant stock exchanges.

SECRECY DAMAGING REPUTATIONS

By continuing to support API’s lawsuit, companies are incurring significant costs defending opacity, not only pecuniary, but reputational as well. The public is becoming increasingly aware of their fight against transparency. While a few companies are taking some steps away from secrecy - Norway’s Statoil disavowed support for the API lawsuit - they are still the exception.

Shell, for instance, faced setbacks when Alan Detheridge, one of its former executives, openly criticized the company’s efforts to block U.S. and EU transparency, and the Dutch government pledged its support for strong EU rules consistent with U.S. law. The company has now started to change its tune, claiming it has supported mandatory reporting requirements all along - an assertion The Economist wryly noted contradicts Shell’s membership in API and refusal to disavow support for the U.S. lawsuit.

Oil companies should draw lessons from Shell’s mishaps, seizing the moment to actually “walk the talk” on transparency. Instead of litigating against transparency, companies should focus on complying with the U.S. and EU rules and enlist their lawyers to prepare for new reporting. Companies covered by the U.S. and EU rules should also join the global transparency movement to ensure these disclosure standards apply to all relevant companies. Obtaining a G8 commitment to mandatory disclosure at this year’s Summit would bring key countries like Canada into the fold. An effort to enact similar legislation in additional markets, including Australia and emerging Asian and South American economies, should follow.

The U.S.-EU legislative consensus on a global standard of transparency is a watershed moment for improving the governance of natural resources worldwide. Big Oil should not stand in the way. To restore their credibility and support good governance and development around the world, oil companies should publicly state their intent to comply with the new disclosure standards and urge API to drop its lawsuit.

Authors

Daniel Kaufmann

Publication: Reuters/TrustLaw

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Ukraine at a Crossroads with Europe?

Steven Pifer — Mon, 22 Apr 2013 11:43:00 -0400

The Kyiv Security Forum, held in the Ukrainian capital on April 18-19, brought together Ukrainians, Europeans and Americans to discuss the current challenges facing Ukraine. Much of the discussion centered on Ukraine’s relationship with the European Union, in particular on whether Kyiv will make sufficient progress in meeting EU conditions to permit signature in November of an EU-Ukraine association agreement.

Several speakers asserted that Ukraine is at a crossroads with Europe. “Ukraine is at a crossroads” has been written or said so many times over the past 20 years that it has become something of a cliché. This time, however, it may be for real. The choices that Kyiv makes in the next weeks and months will determine whether Ukraine moves closer to Europe or whether the EU-Ukraine relationship gets stuck on hold.

EU and Ukrainian negotiators concluded the association agreement at the end of 2011. It would significantly deepen Ukraine’s links with the European Union. Among other things, it includes a deep and comprehensive free trade agreement that would open up large segments of the EU’s economy to Ukrainian exports. It is a big deal.

Although the association agreement was initialed in early 2012, it has since sat in limbo. The European Union has declined to sign given growing concerns over the past two years about negative developments regarding democracy within Ukraine.

EU officials have asked Kyiv to make progress on three conditions—implementation of its general reform agenda, reform of its electoral law, and an end to selective prosecution—in order to permit signature of the agreement at the EU Eastern Partnership summit in November. These conditions were reaffirmed at an EU-Ukraine summit in February, which called for “concrete progress” by May.

Many regard the third condition as the most critical. More than a dozen senior members of the opposition have been sent to jail since President Victor Yanukovych took office in 2010. Most attention focuses on the case of former prime minister Yuliya Tymoshenko. She was convicted in 2011 for signing a gas contract with Russia in a trial that received broad criticism in the West. The near unanimous view in European capitals and Washington holds that Tymoshenko is a victim of selective prosecution. On the day her conviction was announced, even Moscow joined in the barrage of condemnation of the verdict.

In the seven weeks since the EU-Ukraine summit, there has been good news and bad news. The good news: Yanukovych pardoned Yuriy Lutsenko, a leading opposition leader, along with one other opposition member.

The bad news: Serhiy Vlasenko, Tymoshenko’s lawyer, was stripped of his membership in the Rada (Ukraine’s parliament) on grounds that he could not hold his Rada seat and continue his legal work. Critics cite this as another selective application of the rules, as many Rada members, including in the pro-government Regions Party, hold outside jobs that would appear to contravene the rule. And more bad news: the Prosecutor General is pursing another case against Tymoshenko, alleging her involvement in the 1996 murder of businessman Yevhen Shcherban. Given the many questions about how the 2011 trial was conducted, few analysts have confidence that this legal process will be objective.

At the Kyiv Security Forum, several speakers made clear the key importance that Europe attaches to what happens to Tymoshenko. Jacek Saryusz-Wolski, Vice President of the European People’s Party—the European Parliamentary party with which Tymoshenko’s party is affiliated—took a stark position: Tymoshenko had to be released, or there would be no signature in November, and Ukraine would miss its window of opportunity with the European Union. EU Ambassador to Ukraine Jan Tombinski cautioned that Kyiv had to understand that the European Union only accepted democratic states that abided by the rule of law. European Parliament member Pawel Robert-Kowal warned that, even if the association agreement were signed, Ukraine had to demonstrate real progress, as the agreement would face the challenge of ratification by 27 individual EU member states.

During and on the margins of the conference, some Ukrainians expressed optimism that the Ukrainian government would take a positive step regarding Tymoshenko. Others doubted that Yanukovych would take any action on his archrival. Some expected the Ukrainian government to try to do the minimum necessary in order to argue that it had met the EU conditions and assert that freeing Lutsenko, but not Tymoshenko, should prove sufficient progress on the condition of selective prosecution.

Right now, EU member states appear to be split. Some, primarily in Central Europe and the Baltic region, do not want to delay signature of the association agreement over Tymoshenko. They fear that Ukraine might otherwise drift into Russia’s orbit.

Other EU member states, apparently now in the majority, believe Kyiv must do more to show its commitment to European democratic values. France and Germany lead this group. The fate of Tymoshenko has become a domestic issue in Germany, and Chancellor Angela Merkel said on April 17 that, “if the Yuliya Tymoshenko case is not settled, the association agreement cannot be signed.” Ukrainian diplomats understand that Berlin presents the toughest case to win over.

Although the European Union and Ukraine have agreed that concrete progress should be made by May, that might not prove a hard deadline for an EU decision on whether or not to sign the association agreement in November. Some in Kyiv believe a final EU decision could wait until later in the year, perhaps as late as October.

The question remains, regardless of when the European Union decides: will Ukraine do enough to secure signature? That may turn on Tymoshenko’s fate—and how badly Yanukovych wants the association agreement.

Neither Brussels nor Kyiv appear to have a Plan B in case the association agreement is not signed. In late March, Tombinski warned that, if the agreement were not signed in November, the press of other EU business in 2014 and the Ukrainian presidential election in 2015 would put Ukraine and the association agreement on the back-burner until late 2015. Another European diplomat recently suggested the delay would last until 2016.

Ukrainians do not want to think about what happens if the association agreement is not signed. But they expect a failure to sign to be warmly welcomed in Moscow, to be followed by a greater Russian push to draw Ukraine into the Customs Union that currently includes Russia, Belarus and Kazakhstan. Yanukovych thus far has resisted joining the Customs Union. Doing so would be incompatible with a free trade agreement with the European Union and would essentially kill the association agreement—which is almost certainly Moscow’s objective.

So, Ukraine may indeed be facing a critical crossroads. It is one where the key choices are as much about Yanukovych’s domestic policy—how democracy will develop and how the opposition is treated—as they are about foreign policy. If Yanukovych makes the right choices, he will take an important step in integrating Ukraine into Europe. If he makes the wrong choices, he risks miring the country in a gray zone between Europe and Russia and having to face Moscow’s pressure with a severely weakened hand.

Editor's note: Steven Pifer, a senior fellow in the Center on the United States and Europe and a former ambassador to Ukraine, was in Ukraine April 18-20 to attend the Kyiv Security Forum.

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Steven Pifer

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What's Behind all Those Judicial Vacancies Without Nominees?

Russell Wheeler — Thu, 18 Apr 2013 11:54:00 -0400

Last week, Senate Judiciary Committee ranking member Charles Grassley (R-IA.), said “we hear a lot about the vacancy rates. There are currently 86 vacancies for federal courts. But of course, you never hear the President mention the 62 vacancies that have no nominee. That is because those 62 vacancies represent nearly 75 percent of the total vacancies.”

This brief paper, after noting the considerable power that home state senators have over judicial nominations, reports that:

• Considerably fewer of the vacancies without nominees on April 12, 2013, could reasonably be expected to have had nominees by then, based on patterns in the previous two administrations.

• Of the vacancies without nominees, almost half are in states with two Republican senators, and those vacancies are older than those in other states.

• There are many more nominee-less vacancies now than at this point in President George Bush’s presidency.

• Of the vacancies that have received nominations, the time from vacancy to nomination was greater in states with two Republican senators.

• Although it is difficult to apportion responsibility for the number and age of nominee-less vacancies and the longer times from vacancy to nomination, we should consider a specific proposal for more transparency about pre-nomination negotiations that might produce more nominations, more quickly.

The Senate has long honored the concept of “senatorial courtesy”—a willingness to confirm judicial nominees only if the home state senators approve. Senate Judiciary Committee chair Patrick Leahy and most of his predecessors over the last half-century or more have refused to process nominees to whom home state senators have objected, although the form of the objections and the weight given to objections from majority and minority senators has varied.[1] This year, even the Senate majority leader couldn’t get a hearing for a Nevada state judge whom he had recommended, because his Republican colleague refused to let the nomination proceed. Home-state senators’ effective veto over judicial nominees leads to bargaining—how much currently, we outsiders can’t say—between the White House and home state senators to find nominees that the administration favors and that the home state senators are willing to let proceed. The practice now seems to be, in general, that senators propose district nominees to the White House and react to potential court of appeals nominees proposed to them by the White House.

Number and age of vacancies without nominees

As of Friday, April 12, 2013, 71 actual and future vacancies on the district courts did not have nominees before the Senate, nor did 13 court of appeals vacancies. (A “future” vacancy refers to a judgeship occupied by a judge in active status who has announced publically that s/he plans to leave active status at some future date. The Judicial Conference of the United States encourages judges to give a year’s notice of their intention to leave active status, but not all judges do so.)

Only 33 of the 71 district vacancies, however, and nine of the appellate vacancies occurred or were announced before the August 2012 recess. For this and the previous two administrations, vacancies occurring after those fourth-year recesses have not received nominations until mid-April or later of the fifth year, except for one of President Barack Obama’s nominees.[2] The 33 district and nine circuit vacancies also exclude those that became nominee-less when, after the August recess, a nominee withdrew or was not resubmitted. (For example, the Nevada nominee referenced above asked the president to withdraw her nomination on March 13, 2013. Although the president had nominated her in February 2012 for a vacancy created in August 2011, the new date of the vacancy is the date of the withdrawal, and, for that reason, is not one of the 33 district vacancies.)

District vacancies The table shows that of the 32 vacancies in district courts with Senate delegations, almost half—15—were in the 14 states with two Republican senators—including six in Texas, three in Georgia, and two in Kentucky.

Eight of the vacancies are in the18 states with two Democratic senators, including three in California and two in New York. Nine are in states with a mixed delegation, including two in Illinois, three in Pennsylvania, and two in Wisconsin (and one in Massachusetts that was announced three and a half years ago, when the state had a mixed delegation, even though the delegation reverted to all Democratic in January 2013). These 32 nominee-less vacancies include three that once had a nominee who dropped out—two in two-Republican senator states and one in a split-delegation state.

The nominee-less vacancies in the states with two Republican senators are considerably older than those in states with two Democratic senators—measured in average days from the vacancy date, here defined as when it was announced, when it was created if no announcement, or Inauguration Day for vacancies that Obama inherited. Average age of the district vacancies in states with two Republican senators is 672, versus 649 for states with mixed delegations, and 471 for states with two Democratic senators.

Court of appeals vacancies Court of appeals judgeships are not statutorily assigned to particular states within the circuit but strong and rarely disputed traditions dictate that each judgeship belongs to a particular state.

Of the six nominee-less appellate vacancies in states with Senate delegations, four are in states with two Republican senators (Georgia, Kansas, and two in Texas). One is in Wisconsin, where the incoming Republican senator made clear in early 2011 that he would veto a nominee whom the administration first submitted in 2010 and resubmitted in 2011. The Kansas vacancy also had a nominee who dropped out after the two senators would not allow the nomination to proceed. The other is a vacancy on the Ninth Circuit’s Court of Appeals—the oldest vacancy in the country—that has been the object of one of the rare interstate disputes over the seat’s proper location, this one between the California and Idaho Senate delegations. (The 1,543 days shown are from the 2009 Inauguration Day; the vacancy dates to 2004.)

The average age of the four nominee-less appellate vacancies in the judgeships from states with two Republican senators is 529 days and much longer for the Wisconsin vacancy.

Bush Administration Nominee-less Vacancies in April 2005

The current situation is different, certainly as to the district courts, than the one that prevailed early in President George W. Bush’s second term, as shown on the table below, indicating pre-2004 recess vacancies that had no nominees by mid-April 2005, and the days that had elapsed since the vacancies’ creation or announcement.

In 2005, there were five nominee-less district vacancies, as opposed to 33 now, in part because the Senate had confirmed 97 percent of Bush’s pre-recess district nominees, as opposed to 90 percent of Obama’s, and Bush submitted only three nominees from the recess through mid-April, versus 15 by Obama. The three nominee-less appellate vacancies are three fewer than the current six vacancies in states with Senate delegations. Two were in California, one a vacancy for which the administration did not resubmit its initial 2013 nominee due to the home state senators’ objections. The extended vacancy reflected in part a dispute over whether the judgeship belonged to Maryland or Virginia.

Time from vacancy to nomination

What about judgeships that got nominees, whether confirmed or not? The table below shows the total number of Obama district nominees as of April 12, 2013.

On average, the Obama administration has submitted its 171 district nominees 406 days after the date of vacancy. The average for the 28 nominees in states with two Republican senators was 457 days, compared to 412 for the 94 two-Democratic senator state nominees and 364 for the 43 split-delegation state nominees. These figures, though, show the analytical difficulties created by changes in the make-up of Senate delegations; three long-pending Pennsylvania nominations could be ascribed to either the mixed or two-Democratic group. I have ascribed them to the latter, but ascribing them to the former would increase the average days for mixed delegation state nominations to 419 and reduce those for two -Democratic states to 387.[3]

There was considerable variation within the three categories. The six Texas nominees waited on average 603 days from the date of vacancy (as defined above), while the four in South Carolina waited only 286. The nine in Florida, with its mixed delegation, waited 353 days. The two Pennsylvania nominations clearly ascribed to the mixed delegation group waited 665 and 850 days, while the three I ascribed (almost by a flip of the coin) to the two-Democratic category waited 1,152 days on average. The 20 New York nominees waited 399 days on average, and the six in Illinois when it had two Democratic senators waited 275 days.

Average days for making circuit nominations were lower in all categories. There were not enough nominations for individual states to identify reportable variations.

What explains these differences?

We can only speculate, but no doubt both the Obama White House and at least some of the senators bear some responsibility for the high number of long-lasting nominee-less vacancies, and the long times from vacancy to nomination. The 391 days on average from date of district vacancy to nomination in two-Democratic senator states under Obama is longer than the overall time for all nominations under Bush to this point—276 days on average (At this point, Bush circuit nominees had waited on average 300 days for nominations.)

Perhaps the Obama White House has been slower to suggest potential nominees in states with Republican senators, or react more slowly to suggestions from those senators. Perhaps Republican senators insist, more than their Democratic counterparts, on nominees they proposed over White House objections or object more to White House-proposed nominees. The entire Senate Republican caucus told the White House by a March 2009 letter that “if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee. . . .”[4] Perhaps Democratic senators from mixed-delegation states are the hold-ups, or perhaps Democratic House of Representative delegations have also stymied quick nominations by insisting that the White House pay attention to them as well as to their Republican senator counterparts.

Because we can only speculate on White House-senator negotiations, consider the proposal by Columbia Law School’s Michael Shenkman, a former Senate Judiciary staffer who later worked in the Obama administration. He has proposed that White Houses publish “the status of pre-nomination negotiations, although not the names of the [potential] nominees themselves.”[5] Senators could call out what they regard as misleading administration information, bringing the dispute into the open for verification. All in all, “[l]ocal editorial pages across the country would be newly equipped to comment on who is holding up the filling of” vacancies.[6] (Shenkman’s proposal is aimed at district vacancies, because his main objective is to try to fix the somewhat more fixable district judge confirmation process. Restricting the greater transparency proposal to potential district nominees may be the best way to inject any transparency into the process at all. The proposal, though, may merit consideration for court of appeals vacancies as well.)

The form of disclosure would resemble the Administrative Office of the U.S. Courts’ on-line list of “Current Judicial Vacancies,”[7] from which I have drawn some of the data for this short analysis. It displays the vacancy and the date it was actually created, the previous incumbent, the name of any formally submitted nominee, and the date of the nomination. The administration Web page would add to this information, for each vacancy without a nominee, the date on which the incumbent gave notice of the forthcoming vacancy or the date the vacancy was created in the absence of such notice, the date when the White House received senators’ recommendations, and an administration statement on whether it is still considering the unnamed, potential candidates or whether the administration has requested new names.[8] Where the administration initially provides names to senators for comment, the list could identify the date the names were provided, the date of any senatorial response, and, again, whether the administration is still considering the candidates. The administration list, to repeat, would include no names except those of the previous incumbents and those of nominees formally submitted to the Senate.

Shenkman acknowledges that candidates submitted to the White House who are identified in senatorial press releases or by the rumor mill could be embarrassed if they do not get the nomination, but argues the “[a]dministration’s priority should be on the health of the overall process.” Senators might not like the light such a list would shed on their dealings with the White House, but Shenkman argues that it would be difficult for senators to frame a principled objection to such disclosures, which could help repair the overall process.

* * *

At the least, such a public list (and any disputes over its accuracy) would shed more light on the vacancy situation than merely counting the number of nominee-less vacancies.

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[1] See M. Sollenberg, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present (2003), http://wikileaks.org/wiki/CRS-RL32013 . Thanks to my colleague Sarah Binder for calling this document to my attention and for her comments on the phenomenon at issue.

[2] In February, Obama submitted a nominee to a vacancy announced in mid-August on the (senator-less) Court of Appeals for the Federal Circuit.

[3] The three dates of vacancy were in early to mid 2009, when the state had two Democratic senators after Arlen Specter’s switch in April 2009, and persisted through the almost two years of the two-Democratic delegation until nominations in mid-and late 2012, when the state had had a mixed delegation for over a year and a half.

[4] Manu Raju, “Republicans Warn Obama on Judges,” Politico, March 2, 2009, available at http://www.politico.com/news/stories/0309/19526.html.

[5]M. Shenkman, Decoupling District from Circuit Bench Nominations: A Proposal to Put Trial Bench Confirmations on Track,” 65 Ark. L. Rev. 217, at 299 (2012).

[6] Id. at 302.

[7] See star note at p. 1.

[8] Shenkman, op cit at 300.

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Counterinsurgency, Counternarcotics, and Illicit Economies in Afghanistan: Lessons for State-Building

Vanda Felbab-Brown — Tue, 09 Apr 2013 15:30:00 -0400

Editor's note: The following excerpt introduces a book chapter produced by Vanda Felbab-Brown for the Center for Complex Operations volume, Convergence: Illicit Networks and National Security in the Age of Globalization, published in April 2013. In this chapter, Felbab-Brown analyzes U.S. counternarcotics policies in Afghanistan since 2001, how the Obama administration broke with the dominant counternarcotics framework, and the potentially problematic side effects of counternarcotics success.

Since 2001, Afghanistan has become synonymous with the narco-state and the spread of crime and illegality. In 2007 and 2008, the Afghan drug economy reached levels unprecedented since at least World War II. Although the drug economy has declined since, the decrease has largely been driven by the saturation of the global drug market and by poppy crop disease rather than the policies of the international community and the Afghan government. Although several other illicit economies thrive in Afghanistan including the smuggling of legal goods, narcotics receive by far the most attention because they generate the largest profits and the greatest international opprobrium.

Narcotics production and counternarcotics policies in Afghanistan are of critical importance not only for drug control there and worldwide, but also for security, reconstruction, and rule-of-law efforts in Afghanistan. Unfortunately, many of the counternarcotics policies adopted after 9/11 not only failed to reduce the size and scope of the illicit economy in Afghanistan but also had serious counterproductive effects on peace, state-building, and economic reconstruction.

In 2009, the Obama administration wisely decided to scale back eradication efforts in Afghanistan, courageously breaking with 30 years of counternarcotics policies that focused on ineffective forced eradication of illicit crops as a way to reduce the supply of drugs and to bankrupt belligerents. But the effectiveness of its counternarcotics policies there—interdiction focused on Taliban-linked traffickers and alternative livelihoods efforts—has been challenged by implementation difficulties and is ultimately dependent on major progress in improving the security situation and governance in Afghanistan. As of fall 2011, governance in Afghanistan had been steadily deteriorating, with corruption and ethnic tensions rising and political patronage networks becoming more exclusionary, while any security improvements following the 2010 U.S. military surge remain extremely fragile. A civil war post-2014 remains a very likely outcome, with the corollary thriving of the drug trade.

This chapter first details the evolution of U.S. counternarcotics policy in Afghanistan since 2001, situating the changes in the policy within two conceptual frameworks. Next, it describes how the Obama administration broke with the dominant counternarcotics framework in an attempt to synchronize counternarcotics policies with its counterinsurgency efforts. That section also analyzes the implementation challenges President Barack Obama’s counternarcotics strategy encountered—from the side effects of its interdiction focus, to poor governance and the inability to decide whether and how to combat broader corruption in Afghanistan, to defining alternative livelihoods efforts as narrow buying support programs rather than long-term sustainable development. Next, the chapter considers the likely security and political conditions in Afghanistan after a reduction in U.S. combat forces there in 2014. Subsequently, it explores two oft-ignored but potentially problematic side effects of any future counternarcotics success in Afghanistan: what illegal economy may replace the opium poppy economy if it is reduced, and where the opium poppy economy is likely to shift. In conclusion, the chapter offers broader lessons for dealing with illicit economies in the context of counterinsurgency and state-building.

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Vanda Felbab-Brown

Publication: Center for Complex Operations

The Illegal Trade in Wildlife in Southeast Asia and Its Links to East Asian Markets

Vanda Felbab-Brown — Fri, 05 Apr 2013 13:45:00 -0400

Editor's note: In this book chapter from An Atlas of Trafficking in Southeast Asia (I.B. Tauris 2013), Vanda Felbab-Brown traces how increasing demand for wildlife and wildlife products has devastated regional and global ecosystems in Asia. Underlying the unsustainable and ill-regulated wildlife trade has been the limited progress to curb exploding demand for wildlife products.

Introduction

Mainland Southeast Asia, with its linkages into the larger Asian market that includes China, Indonesia and India, is one of the world’s ‘wildlife trade hotspots’ – that is, a region where unsustainable and ill-regulated trade in wildlife poses a disproportionally large threat to biodiversity and species preservation. Both the volume and diversity of traded and consumed species have increased to phenomenal and unprecedented levels. Wildlife is currently being extracted from Southeast Asia’s tropical forests at six times the sustainable rate. The region is a key supplier of the international market in wildlife, legal and illegal. Increasing global buying power, population growth and globalisation have led to a rise in demand for wildlife in developed, emerging and developing countries alike. However, Southeast and East Asia today probably represent the areas of the most intense legal and illegal trade in wildlife, with China as one of the biggest (if not the biggest) consumers of wildlife products in the world. China’s exploding demand, a result of the increasing affluence of its expanding middle class, has turned the country into a great vacuum, sucking natural environments empty of wildlife – not only from China’s and her Southeast, South and East Asian neighbours, but also from across the ocean in Africa and elsewhere.

Law enforcement efforts and public awareness of the ecological harms in Southeast and East Asia have been inadequate even to reduce the scale of the threat. Yet the need for vastly increased effectiveness of policy action is urgent. Unlike other illegal economies, such as the drug trade, that exploit resources that can be renewed, and thus can be conducted infinitely, the illegal trade in wildlife is drastically depleting its marketable products, unfortunately at an irretrievable cost to humankind and the world’s ecology. Once endangered species are extirpated at the hands of poachers and traffickers, they are gone and there is often no bringing them back.

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Authors

Vanda Felbab-Brown

Publication: I.B. Tauris

The Jagged Edge: Illegal Logging in Southeast Asia

Vanda Felbab-Brown — Fri, 05 Apr 2013 00:00:00 -0400

Editor's note: In this book chapter from An Atlas of Trafficking in Southeast Asia (I.B. Tauris 2013), Vanda Felbab-Brown presents an overview of the current state of illegal logging in Southeast Asia, a critical international hotspot of biodiversity. As demand for timber increases, the absence of effective policing and rule of law mechanisms to enforce the legality and sustainability of timber extraction and biodiversity protection poses unprecedented threats to forest ecosystems and global warming mitigation.

Introduction

One of the world’s most important hotspots of biodiversity, Southeast Asia is unfortunately also an area of the most intense deforestation in the world, with devastating and irreparable effects on its and the world’s forests and ecosystems. With illegal logging accounting for a very large portion of forest destruction in the region, Southeast Asia has the highest rate of deforestation of any major tropical region: 1.2 per cent of forest lost yearly, followed by Latin America (0.8 per cent) and Africa (0.7 per cent). At current rates, by 2100, Southeast Asia will have lost three-quarters of its forests and 42 per cent of its biodiversity. Increasing efforts since the 1980s to regulate timber extraction and make it sustainable have also resulted in the emergence of intense illegal logging throughout a region where there used to be free-for-all unrestricted forest felling.

Paradoxically, solving the problem of sustainable supply of timber does not equal solving the problem of how to sustain forest ecosystems and their biodiversity. This is because timber in general, though far from all species of trees and bamboo, is renewable through reforestation and plantation promotion, but the forest ecosystem overall is not. Plantations and reforestation can achieve neither the original forest’s structure or complexity nor its biodiversity. Yet in Southeast Asia the measures adopted have been geared primarily toward assuring a sustained supply of timber or mitigating other detrimental environmental effects, such as flooding, but not the preservation of natural, especially primary, forests.

Similarly, even effectively addressing the problems of illegal logging and timber smuggling, as difficult as they are, does not necessarily preserve sustainability. As demand continues to expand, it remains to be seen if timber extraction and consumption – whether legal or illegal – can be made compatible with biodiversity preservation.

However, there have been some positive developments. Various measures to address illegal logging and maintain forest biodiversity, such as certification of sustainably and legally logged timber and forest management plans, are increasingly being adopted in Southeast Asia and elsewhere. In some cases there are signs of at least their partial effectiveness in preserving timber and even forests. The question remains whether these measures, including demand reduction efforts, can be developed, adopted and enforced fast enough to avoid a major collapse of the world’s natural forests and irretrievable species loss.

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Authors

Vanda Felbab-Brown

Publication: I.B. Tauris

Bassem Youssef: A Valuable Egyptian Voice That Will Not Be Silenced

H.A. Hellyer — Sat, 30 Mar 2013 00:00:00 -0400

Editor's note: This article was published by Tahrir Squared.

Early on Saturday morning, I received a message that Bassem Youssef, the Arab world's answer to 'Jon Stewart', had been issued a compulsory summons and arrest warrant by the prosecutor-general. The prosecutor-general's office wanted to investigate two charges against him: 'insulting Islam' and 'insulting the president'. All I could do was smile -- because I knew that was exactly what Bassem would be doing as soon as he heard the same.

Almost a year ago, Egyptians went to the polls for their first free presidential election -- the first round delivered what was a nightmare of a result. A representative of the former regime, Ahmad Shafiq, which did nothing but signify a return to the status quo that existed during Hosni Mubarak – and a representative of the Muslim Brotherhood, an organisation that had shown little commitment to the Egyptian revolution, save as an opportunity to gain power. The day those results came out, I was in Bassem's office. Many of his team were simply stunned at the result. Bassem, on the other hand, just expressed slight surprise -- at all of us. As far as he was concerned, the result just meant one thing -- that they'd have a lot of material for political satire. And the revolution would go on.

That’s Bassem.

A few weeks later, we travelled across the United States together, as we prepared the new show, ‘America in Arabic’ -- the combination of a reality show looking at America through Arab-American and Arab immigrant eyes, and a political satire. There, I understood why Bassem was not so concerned about the presidential results – because for him, the revolution went beyond that. Several times, he was asked in public, ‘what will you do in the second round?’, which took place while we were actually in the U.S. on tour. He never replied directly. Instead, he said,’ I’m not sure, but it would be really difficult for me to vote for Ahmad Shafiq.’ Did that mean he’d vote Morsi? Or boycott? That’s something only Bassem can answer.

But none of that really mattered - what mattered was how he responded to the question. As soon as he confessed his reluctance to vote for a representative of the former regime, he would always follow up with two important points. The first was, ‘But I understand why people who will vote for Ahmad Shafiq will vote for him - and while I may disagree, I can understand it.’ That sort of generosity of spirit, with a clear commitment to the revolution that he himself had fought in, was what made, and makes, Bassem Youssef one of the most consistent, and principled, Egyptian public figures today.

The second thing he said, which comes from the same impetus that this very website was borne out of, was the following. “Whether Shafiq wins, or Morsi wins – the revolution continues. Whoever it is, or whoever else it could have been: the revolution continues.”

I’ve never forgotten he said that. Hearing him say that in crowds in San Francisco, Virginia, New York and Los Angeles, the effect of it was always the same – shivers. His commitment to the revolution of the 25th of January was unwavering – and I believe remains as such. That commitment wasn’t about a particular president, or lack thereof – it was about the changing of Egypt for the better. He understood, and understands, that Egypt’s struggle is still ongoing – and will continue for quite some time. For him, the revolution wasn’t about removing a political figure from power – or indeed, putting another one in place. The revolution was about changing Egypt – and that would take time, and effort.

For the life of me, I cannot really fathom the sense of summoning him to the prosecutor-general. But then, much of what has been applied by the Egyptian state in the past couple of years has been bizarre and peculiar. This government does not seem to understand one crucial point: Bassem Youssef, and all that he does, is actually completely in its benefit. The criticism that Bassem does is more valuable than every single laudatory article that comes out in Ikhwanophilic media – because it is genuine, and it is honest. If Bassem Youssef was to disappear from the airwaves, as it seems many supporters of the government desire, this government would not be stronger – it would be far, far weaker.

Bassem Youssef isn’t an enemy of the Egyptian presidency – he is simply an Egyptian patriot. For that, he ought to be congratulated by supporters of the government – not chastised. If tomorrow morning, when Bassem shows up at the courthouse, he is arrested by the Egyptian state, it will not be Bassem Youssef that loses out. It is going to be this government, and its supporters – because all it is really likely to do, in the final analysis, is give Bassem yet more material. Because one way or the other, he will walk out a free man – and his commitment to the 25th of January revolution will just be more intense.

Authors

H.A. Hellyer

Publication: Tahrir Squared

A Discussion About Drones

Peter W. Singer — Fri, 29 Mar 2013 00:00:00 -0400

Editor's note: In an interview with Charlie Rose, Peter W. Singer joins Michael Boyle of LaSalle University, Rosa Brooks of Georgetown University, and Scott Shane of The New York Times to discuss the revolutionary nature of drone technology as well as the dilemmas—strategic, ethical, political—that they present. Read an excerpt below.

Charlie Rose: Peter Singer, put this in the context of warfare overall.

Peter Singer: Well you have a revolutionary change that’s happening in the technology of war. Now, the question here is, are we talking about war or counterterrorism—we’ve got things conflated. But when you look at the technology of drones, it’s a gamechanger in war. It’s something along the level of the introduction of gunpowder or the steam engine or the airplane. By that I mean it gives you a series of capabilities that we didn’t imagine we’d have a generation ago, but also it’s giving us a series of dilemmas that we also didn’t imagine we’d be having a generation ago. And they’re dilemmas that are political, strategic, tactical, all the way down to ethical and legal.

Now one thing that’s happening here I think that’s a challenge is that we’re seeing things conflated. So, just as the example that Scott gave of the conflation between the JSOC kill list and process—the Joint Special Operations Command on the military side—and the one that the CIA is doing, both of which are taking place in the shadow wars that are out there.

Peter Singer: Signature strikes is an illustration of this, where on one hand we’ve seen administration officials say either “we don’t do that,” and other times we’ve heard them say “we do do that, but this is why.” But then we also have a variety of tactics beyond signature strikes that, for example, in an overt military operation you would never utilize.

One’s called a 'double tap strike,' which is where you strike at a target and then you wait for the rescuers to come about and you strike again. Now that’s been something that we’ve pointed out that if adversaries did that in Afghanistan or Iraq we would say “how dare you, this is evidence of how bad they are.” Yet there have been reports that we may have conducted strikes in a similar manner. Don’t know whether they’re confirmed or not.

But what I’m getting at here is that a civilian, political appointee lawyer, operating under a very different set of laws and priorities, looks at that issue and the question of what tactics you might bring, what rules of engagement you operate under, very differently from how a military lawyer would. And that’s part of the importance of whether these do shift from intelligence agency to military, but also whether they stay in the complete black ops world or whether we own up to the fact that these are not covert operations anymore, they’re frankly not so covert, and we need to stop running away from them and embrace the fact that we are doing them and these are the rules we’re going to operate under and actually stick and follow those rules.

Authors

Peter W. Singer

Publication: Charlie Rose

Supreme Court Finds the Use of a Drug-Sniffing Dog to Investigate a Home Unconstitutional

John Villasenor — Wed, 27 Mar 2013 15:27:00 -0400

On March 26, the Supreme Court issued its decision [PDF] in Florida v. Jardines, a case involving police use of a drug-sniffing dog on the front porch of a home to detect marijuana growing inside. In a 5-4 opinion delivered by Justice Scalia, the Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

In 2006, following a tip regarding marijuana being grown in a house, Miami police brought a drug-sniffing dog to the front porch. After the dog indicated the presence of drugs, police obtained a warrant, found marijuana in the house, and arrested Joelis Jardines. At trial, Jardines claimed that the use of the drug-sniffing dog was a Fourth Amendment violation. After a trial court and then the Florida Supreme Court agreed, Florida petitioned and was then granted a Supreme Court review, and oral arguments were heard in October 2012.

The Court’s opinion in Jardines is narrowly crafted, focusing on the government’s physical intrusion into the constitutionally protected area immediately surrounding the home (called the “curtilage”) for the purposes of gathering evidence. The Court acknowledged the existence of an implicit license permitting visitors to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” “Complying with the terms of that traditional invitation,” explained the Court, “does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” However, there is no implicit license to introduce “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” Since the officers were able to learn that marijuana was being grown in the home only by “physically intruding on Jardines’ property to gather evidence,” the search was unconstitutional in the absence of a warrant.

The majority opinion explicitly declined to consider whether the officers’ search of Jardines’ home violated his reasonable expectation of privacy; it was sufficient to find a constitutional violation based on what the Court characterized as “the traditional property-based understanding of the Fourth Amendment.” A concurring opinion from Justice Kagan and joined by Justices Ginsburg and Sotomayor went further. “Yes,” Justice Kagan wrote, the officers’ actions constituted a trespass. “Was it also an invasion of privacy? Yes, that as well.”

In some respects, the Jardines decision echoes the Court’s January 2012 decision in United States v. Jones [PDF], the GPS-tracking case in which Justice Scalia’s majority opinion also found a Fourth Amendment violation in the act of trespassing—in that case with respect to the physical intrusion involved in placing a GPS receiver on a car without a valid warrant. In Jones there was also a concurrence (two, in fact) suggesting that the information gathered by the government violated a reasonable expectation of privacy.

As technology continues to advance, it will become harder to rely on a property-focused view of the Fourth Amendment when assessing what constitutes a “search.” In fact it is actually the 2001 Kyllo v. United States case, and not this week’s ruling in Jardines or last year’s decision in Jones, that is in some ways more indicative of the types of complex questions the Court will grapple with in future privacy cases. In Kyllo, the Court considered the government’s use of a thermal imager in a car on a public street to detect the interior temperature of a home. There was no trespass in Kyllo, leaving the Court no choice but to evaluate the constitutionality of the government’s actions on the basis of what the technology itself could reveal. When the government “uses a device that is not in general public use,” the Court held in Kyllo, “to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Suppose that the police in Jardines had used the drug-sniffing dog—or, for that matter, an inanimate sensor—from the vantage point of a public sidewalk in front of the house? The majority opinion in Jardines doesn’t address this scenario. Justice Kagan and the two justices who joined her concurrence considered a trained drug-detection dog to be a device not in general public use, and on those grounds would have found its use unconstitutional in light of Kyllo. By contrast, Justice Alito and the three other dissenting justices disagreed that Kyllo was applicable in Jardines, noting that a dog is neither a new form of technology nor a device.

Technology is making it increasingly easy to access information that most of us would consider private without physically trespassing on private property. Mobile devices and apps, smart meters, and Internet histories can convey enormous amounts of information about activities both within and outside a home, all of which can potentially be accessed by third parties who never set foot in a home or its surroundings. Some of the most pressing privacy questions that will land at the Supreme Court’s feet in future years will involve exactly this sort of data, collected using technologies that are in general public use—and therefore outside the scope of the holding in Kyllo. When that happens, the Court will face the unenviable task of determining what, in today’s day and age, constitutes a reasonable expectation of privacy in light of technologies that are both highly sophisticated and widely used.

Authors

John Villasenor

Publication: Forbes

Still Knee-Deep In Poppy: The Evolution of Counter-Narcotics Policies in Afghanistan

Vanda Felbab-Brown — Tue, 26 Mar 2013 10:20:00 -0400

Editor’s note: The following excerpt introduces a book chapter produced by Vanda Felbab-Brown for the German Council on Foreign Relations (DGAP) volume, Partners for Stability, published in March 2013. In this chapter, Dr. Felbab-Brown explains how international and domestic counternarcotics efforts in Afghanistan cannot be successful without first achieving substantial security improvements and good governance within the country.

Perhaps nowhere in the world have a country and the international community faced such a strong illicit drug economy as in Afghanistan. In 2007 and 2008, the economy reached levels unprecedented in the world at least since World War II. But neither opium poppy cultivation nor heroin production is a new, post-2001 phenomenon: each robustly existed during the Taliban era and before. Although opium production has declined in Afghanistan since 2008, the decrease has largely been driven by the saturation of the global drug market and by poppy crop disease, rather than being the outcome of the policies of the international community and the Afghan government.

Narcotics production and counter-narcotics policies in Afghanistan are of critical importance not only for drug control, but also for the security, reconstruction, and rule-of-law efforts in Afghanistan. Unfortunately, many of the counter-narcotics policies adopted during most of the 2000s not only failed to reduce the size and scope of the illicit economy in Afghanistan, but also had serious counterproductive effects on the other objectives of peace, state-building, and economic reconstruction. In a courageous break with a previous counterproductive policy, the Obama administration wisely decided in 2009 to scale back poppy eradication in Afghanistan, but it has struggled to implement its new strategy effectively. Although it backed away from centrally-led eradication, Afghan governor-led eradication persists. The interdiction policy adopted by ISAF at times approximates eradication in its negative effects on farmers’ well-being and their receptivity to Taliban mobilization, and rural development policies have failed to address structural drivers of poppy cultivation. Moreover, despite the surge in U. S. military forces adopted in December 2009 and important improvements in security in Afghanistan’s south, the 129,469 U. S. and ISAF forces deployed as of May 2012 have not stabilized other parts of Afghanistan, such as the east. The Taliban and related insurgencies have not been robustly defeated even in the south, and they maintain an important foothold in Afghanistan’s north as well. As U. S. and ISAF troops are preparing to depart Afghanistan by 2014, they are handing over an on-going war to Afghan security forces. Although both Russia and the United States have supported counter-narcotics policies in Central Asia, such as interdiction training, these efforts have achieved little systematic effect on either reducing illicit flows, the strength of organized crime, and corruption in the region or encouraging regional cooperation.

Authors

Vanda Felbab-Brown

Publication: German Council on Foreign Relations

Indonesia Field Report IV: Wildlife Trafficking, Illegal Fishing, and Lessons from Anti-Piracy Efforts

Vanda Felbab-Brown — Tue, 26 Mar 2013 00:00:00 -0400

The Cruel Wildlife Market

Hundreds of cages with birds, lizards, bats, and mammals were stacked upon one another, with tens or sometimes even hundreds of specimens crammed into one cage. Several dozen white-eyes (a bird genus) were squeezed into a cage appropriate for one canary. At least a hundred bats were stuffed into another container. In a cage atop this stack, more than fifty green agama dragon lizards, some dead, with their bodies rotting amidst those still alive, were desperately competing on the ceiling of their container for a little of bit space. Two baby civets, on sale for 400,000 Indonesia rupiah each (about USD 40) were shoved into an adjacent box. Like the rest of the unfortunate animals – squirrels, chipmunks, black-naped orioles, drongos, leafbirds, shamas, mynas, partridges, and the highly-prized and highly-threatened lories – the civets had no water and no protection from the full blast of the hot Indonesian sun. Many of the animals would die in this (in)famous Yogyakarta bird market before they were sold to new owners.

Meanwhile, however, the Yogyakarta bird market, like other wildlife markets in Indonesia and East Asia, serves as a perfect incubator for diseases that can mutate and jump among species, such as avian influenza and SARS. Such zoogenic diseases could potentially set off a catastrophic pandemic killing millions of people. The spread of the viruses to domestic animals and people is exacerbated by the trade in roosters for cock-fights, also on sale in the market amidst the wild-caught birds and animals. Even the animals sold before they die in the hands of their traders often do not survive as household pets – typically the fate of species such as woodpeckers, eagles, and owls.

The inhumane treatment of the animals in the many wildlife markets I visited during my research across the Indonesian archipelago was as heart-wrenching as the devastation this unmitigated trade in wild birds and other animals wreaks upon Indonesia’s ecosystems. Orange-headed thrushes and white-crested laughing thrushes, available in cages to eager buyers, are now exceedingly rare in the remnants of Indonesia’s forests, for example.

To reduce the consternation and criticism of international tourists, Yogyakarta’s wildlife market was moved more out of sight – away from its previous location next the frequently visited old royal palace. Nevertheless, enterprising Indonesian young men on motorcycles still bring Western tourists to the market’s new location. A young German woman, with a Lonely Planet Indonesia guidebook tucked in her purse, was eagerly taking photos of the cages, her very short shorts and tanktop as much an affront to Indonesia’s cultural sensitivities in this conservative Muslim city as the appalling conditions of the traded animals are to Westerners. An emblematic introduction to the fusion and confusion of conflicting values in this modernizing yet tradition-bound country?

Hunters and Buyers

In the Indonesian Market

Indonesian buyers and sellers rarely exhibit any qualms about the ecological impacts of the trade and the conditions of the animals. Wildlife trade, particularly in birds, is deeply entrenched in Java’s culture. A Javanese proverb states that every man should have a house, a horse (these days often interpreted as a car, or at least a motorcycle), a wife, a kris (a traditional dagger), and a bird. Because of this strongly-held tradition, at least one third of Javanese households keeps birds, I was told by representatives of a joint international-Indonesian environmental NGO, whom I interviewed on the condition of anonymity. Indeed, strolling through middle-class neighborhoods of Javanese towns reveals house after house with several cages of prinias, bulbuls, orioles, laughing thrushes. Eerily, however, there are precious few birds in the Javanese countryside, most having been caught by traders.

The bird trade is so culturally-ingrained that only some environmental NGOs operating in Indonesia dare oppose it. “Our current priority is to preserve and try to rehabilitate the devastated Indonesian ecosystems. The bird trade is just too difficult; too culturally sensitive. Attempting to stop it could get us shut down or hamper our other operations, such as trying to restore at least a tiny sliver of Indonesia’s lowlands forests. The Indonesian police are not interested in the bird trade anyway. We count ourselves lucky when we get law enforcement action against endangered mammals,” one of the NGO representatives told me after I repeatedly assured him that I would not identify either him or the NGO.

But even in this tradition-oriented society, tastes in the wildlife market do evolve. Unfortunately, in Indonesia and East Asia, wildlife tastes have been changing all too often toward a more expanded and voracious appetite for wild animals and wildlife products. One of the latest fads in Indonesia is keeping lizards; and young middle- and upper-class Indonesian men on the make now prefer them to birds.

Still, rare and highly-endangered birds, such as lories from Papua, or the Bali starling, continue to be highly desirable and can cost hundreds or thousands of dollars. A summer 2012 biological survey revealed that only 31 Bali starlings were left in the Bali Barat National Park, a conservationist involved in the survey told me. Then in July 2012, poachers coated a few trees with glue and captured six of the starlings in the park, eliminating one fifth of the population in the wild. A release of captive-bred birds is planned to boost the population of the species whose survival hangs on a thread as thin as the fishing nets that poachers also use to catch the birds. But without better law enforcement in the park and against buyers throughout the archipelago, and without a dramatic decline in the desirability of the Bali starlings by Javanese bird owners, will the released birds have any chance?

Some of the poachers are desperately poor. In the Moluccas or Papua, they are sometimes paid as little as a bowl of noodles for a day’s hunting, or a pack of cigarettes for a rare bird. But that pack of cigarettes can be enough to extirpate an endangered species. And traders can be shockingly frivolous in how many individual birds or animals they are willing to have killed for the survival of a few that would bring high profits on the international market. Ambonese hunters, mostly very poor, will be paid five dollars for a caught black-capped lori. In order to smuggle out the protected endangered and highly-desired species, traders will then shove the small birds into plastic bottles tied together, throw them into the sea, and fish them out miles away from the island and any possible law enforcement action. With the surviving birds fetching up to thousands of dollars, even a 95% loss of the captured birds (many would suffocate in the plastic bottles) will generate handsome profits. For a fistful of dollars, a species can be rapidly wiped out.

Keeping birds and consuming products from wild animals has a long history in Indonesia. The Dayak communities in Kalimantan, for example, have hunted hornbills for their feathers for centuries. In northern Sulawesi, the Christian community has had a strong taste for bushmeat, with anything that can be hunted often being highly craved for dinner (and very pricey in the Langowan and Tomohon bushmeat markets). One of the greatest delicacies—its consumption being a symbol of status and affluence -- is the black crested macaque, a primate endemic to Sulawesi. Over the past three to four decades, the species has been experiencing an 80% decline. Although deforestation in Sulawesi has eliminated much of the macaques’ habitat, hunting these days actually poses a far greater threat to the species. In addition to its highly-prized meat, its fur is used in traditional dancing to signify bravery; and its skulls decorate masks and costumes.

Protecting the threatened primate has become an environmental priority for conservationists in northern Sulawesi. In an inspired move, an NGO tried to reduce some of the hunting pressures on the macaques by producing artificial skulls looking identical to the real ones, so the replicas would be used for traditional costumes. Another NGO that is currently leading the effort to save the macaques near the Tangkoko Reserve – the Selamatkan Yaki project – has emphasized environmental education to explain to consumers that if they do not reduce the hunting to sustainable levels, all the macaques will be gone and there will be no more pricy meat or and no more fun of hunting the primates, a factor which many hunters identified as an important motivation. (Many of the wildlife traders I interviewed across the archipelago about the critical depletion of the species they were selling and the negative impact on their business if the animals were extirpated in the wild were shockingly unaware and indifferent. They would insist that the birds and animals would always be in the forest and dismiss my suggestions that the species could die out and their trade collapse.) As part of its environmental education and demand-reduction effort, the Selamatkan Yaki project has also tried to involve the local Christian church in the campaign for environmental conservation, as well as to get influential community leaders to declare that the macaque meat, unlike pork, is not crucial for celebrations. But these demand reduction efforts, as imperative as they are, are also very painstaking and slow-going. And for many species, the time is running out at a rapid pace.

In the Booming International Market for Wildlife

The portent of extinction has become all the more threatening as the volume of animals hunted for the local traditional markets is nowadays vastly surpassed by the volume of animals hunted for the booming international market. These international profits often dwarf those in the traditional trade, and international wildlife trading and trafficking are expanding at an exponential rate as a consequence. Many of the hottest wildlife markets are located in China and in East Asia.

Keenly embraced by East Asia’s increasingly affluent middle and upper classes, Traditional Chinese Medicine (TCM) concoctions promising extraordinary curative powers, enhanced longevity, and increased sexual prowess are more popular than ever. So is the consumption of exotic bushmeat. These international wildlife-demand markets have resulted in extraordinary numbers of animals being hunted, sometimes in the millions of specimen per year. The toll on genera such as pangolins, seahorses, turtles, or civets has been huge.[1] Just over a decade ago, for example, Malayan box turtles, then widespread across Indonesia, as well as two endemic Sulawesi land tortoises, fell victim to the Traditional Chinese Medicine craze. So that they would be eventually shredded in blenders into TCM jelly and paste, villagers in Sulawesi would collect them everywhere and sell them for 5000 Indonesian rupiahs (about half a U.S. dollar) per turtle or tortoise. According to a biologist from the Pacific Institute in northern Sulawesi, a subsequent three-month field research project in the area in 2007 found only 2 specimens of what used to be several plentiful species, including some found nowhere else. The turtles and tortoises were literally eaten off the island.

One of the newer fads in the Traditional Chinese Medicine market I encountered during my research in Kalimantan was for hornbill tusks. In Kalimantan, the bills and tusks would fetch 2 million Indonesian rupiahs (roughly USD 200), making the beautiful and enigmatic hornbills a new favorite of local Kalimantan hunters. In the demand markets of China, Singapore, Macau, and Hong Kong, the tusks would bring far more. The presence of well-heeled Chinese coal and timber companies in Kalimantan facilitated the trade, and the companies were often already paying off the Indonesian police, military, navy, and coast guard. Even without extensive bribes, stopping the trade in the tusks would be of far lower priority for Indonesian law enforcement agencies than interdicting artisanal illegal mining, for example, which the big mining companies have an interest in stopping and can financially motivate the law enforcement agencies to take action against.

Policy Responses

Reducing Demand for Wild Animals through Captive Breeding

Sometimes, a legal market in captivity-bred animals can greatly reduce pressures on the natural ecosystems and species. The prohibitions and restrictions on importing wild birds into the United States and European Union, coupled with a legal supply of desirable birds, such as parrots, from captive stocks, greatly reduced poaching for those markets. This legal supply of birds certified to have been bred in captivity have had a palpable impact in Indonesia too, where the bird trade to Europe and the United States dramatically declined, despite the fact that the trade had a centuries-old history, being established essentially at the time when Europeans first arrived in the Moluccas and Papua and saw the local exotic birds.

However, according to the environmental NGOs and conservation biologists I interviewed in Indonesia, bird-breeding facilities in Indonesia itself have not produced similarly positive conservation outcomes, and often serve merely as mechanisms for laundering birds caught in the wild. For a bribe, Indonesian officials often hand out fake licenses for such supposedly captive-breeding programs and the birds. For example, since selling wild-caught lories is illegal, traders often claim that they are captive-bred and produce fake documents to launder the birds.

Alternative Livelihoods for Hunters and Illegal Fishermen

These days hardly all hunters are desperately poor individuals. Nonetheless, even organized crime groups specializing in poaching frequently hire local people living on the edge or inside the forest as trackers, guides, and even shooters. In Indonesia, they can be very destitute individuals struggling to eek out a living and support their families, like those in the Moluccas, who will hunt endangered birds for a bowl of noodles a day. Providing them with an alternative means of livelihood is not only important from the perspective of human rights and human security, but also frequently critical for the success of conservation policies.

Occasionally, alternative livelihoods programs to reduce poaching have scored successes. On the Indonesian island of Seram, for example, twenty poachers of rare parrots were converted (through the work of Profauna, one of Indonesia’s NGOs most determined to fight against the illegal wildlife trade) into rescue-center staff and wildlife guides for tourists. As a result of this alternative livelihoods effort, poaching dramatically fell off. But the success depended on a steady flow of eco-tourists whom the newly-converted poachers could guide. For that, an international counterpart to the conservation effort helped recruit birdwatchers in the United States to travel to Seram. When that international supply of eco-tourists fell off, the income from wildlife guiding for the former poachers declined and the pressure to resume illegal hunting to generate livelihoods intensified once more.

The Seram story is a micro-example of the conditions on which successful alternative livelihoods depend. If poor poachers have an assured income from other sources, they are often willing to abandon the illegal hunting, even though poaching often brings more money. But their income from other sources needs to be steady and assured. The problem with many ecotourism alternative livelihoods efforts is that the income fluctuates greatly and tends to be sporadic and seasonal. Often, for an area to draw a sufficient number of ecotourists to generate income, it needs to contain large mammals that can fairly easily be seen by tourists. Thus, eastern Africa’s savannahs tend to attract many more tourists than rainforest areas.

Moreover, success in bringing an alternative income to potential poachers depends also on the number of potential poachers. It is one thing to employ twenty hunters (like in the Seram example) and quite another thing to bring employment to several thousand people who may reside in or near an ecologically-sensitive area and can become poachers (as well as illegal loggers). The number of jobs generated by ecotourism is often far lower than the existing local needs for employment and the number of illegal poachers, illegal loggers, and pastoralists who encroach on forests. Moreover, whether such ecotourism takes the pressure off poaching is also dependent on whether eco-lodges and ecotourism companies capture the vast majority of profits or whether local communities do in fact get a sufficient cut from the profits.

Note that the above discussion has not taken into consideration whether or not the influx of humans through high-impact ecotourism generates even greater environmental damage than the previous hunting and more profoundly disturbs the entire ecosystem, rather than just particular species.

Income generated by non-ecotourism alternative livelihoods efforts, such as converting hunters into producers of ethnic crafts or honey and other renewable wildlife products, rarely does better than ecotourism alternative livelihoods. Mostly, such alternative economies generate incomes too paltry and sporadic to be attractive to local communities to sufficiently wean them off poaching. Success of such efforts mostly tends to be lower than even the infrequent success in converting illicit crop farmers to farmers of legal crops. In the case of wildlife poaching, legal agricultural production can sometimes reduce hunting – though once again, the question is whether the required land conversion and deforestation will ultimately devastate the entire ecosystem even more. Just as in the case of alternative livelihoods for illicit drugs, success is predicated on well-enforced property rights, the availability of microcredit, good infrastructure, and other structural factors. Crucially, it also depends on well-established value-added chains and assured markets, neither of which are developed easily in remote areas where forests or biodiversity-rich savannahs still exist. Thus on Indonesia’s Flores island, one of the sensitive land and marine areas, there may well be first-rate avocados, but because of a lack of infrastructure and value-added chains, farmers often feed them to pigs instead of exporting them. Flores’s four kinds of mangoes could well be successfully sold in many international markets, but those markets have not yet been developed. And if one day they are, it is critical that they do not generate new deforestation to clear the way for the mango trees, compounding the pressures on already devastated natural forests of the island.

In the Komodo National Park area, for example, inducing local people to switch from dynamite-fishing that decimates the area’s biodiversity-rich marine ecosystems to carving wood crafts for tourists has met with some successes. However, the former fishermen got used to taking wood from the park’s mangroves, replacing one negative ecosystem impact with another. Persuading them to use jackfruit timber instead has become the new imperative. Similarly, seaweed farming in the Komodo area and around Sulawesi has become a popular alternative to fishing, and one that currently has a thriving international market. But careful assessments as to whether the seaweed farming – and of what particular seaweed species and through what precise methods - is fully compatible with coral conservation have yet to be made.

Scuba diving tourism is thriving in the area, bringing with it a variety of positive spillovers for the local economy, such as new restaurants, lodges, and markets. But it is mostly concentrated in Labuan Bajo, not benefiting all parts of Flores equally and many not at all. Moreover, most hotels and dive companies are not owned by local people, with much of the profit leaving for Jakarta or abroad. And only very few of the dive masters are local people.

Improved Law Enforcement

Without alternative livelihoods in place or the ability to change the structure of incentives for the many types of actors who participate in the illegal wildlife trade – as well as without reducing demand for wildlife products -- law enforcement is rarely a sufficient answer. But it is a critical and inescapable component of such efforts.

In Indonesia, enforcement of wildlife regulations has a long way to go. The problem starts with the laws themselves. With few exceptions, such as in the case of kingfisher species which are not allowed to be hunted, Indonesian law does not prohibit the killing and trapping of wild animals in general, only those protected by the Convention on International Trade in Endangered Species (CITES). Unsustainable legal hunting, often poorly monitored to assess its true environmental impact, thus devastates species in Indonesia, with Indonesia’s law enforcement agencies having no interest or means to counter it. Even for wildlife protected by CITES, the Indonesian law sets as the maximum penalty five-year imprisonment or a ten thousand dollar fine. But poachers and wildlife traffickers rarely face law enforcement action, frequently bribing their way out of punishment in Indonesia’s notoriously corrupt courts. If they are sent prison at all, it is usually for a few weeks at most.

Nonetheless, improvements in Indonesia’s wildlife protection enforcement are under way. Many new commitments, efforts, training, and better practices are stimulated by ASEAN’s Wildlife Enforcement Network (ASEAN-WEN) and its international government and NGO partners. The United States government is actively supporting those efforts; and INTERPOL has also elevated wildlife trafficking on its list of priorities. In turn, the importance of acting against wildlife trafficking has also risen for Indonesian law enforcement agencies, though it still retains a much lower priority than drug trafficking, for example, and hence rewards (such as promotion in rank) are not come easily earned for interdiction of wildlife trafficking. Such increased law enforcement efforts are very important and welcome. Setting quotas for the minimum of wildlife cases Indonesian law enforcement officers must catch is hardly the optimal law enforcement approach but, arguably, it shows at least an increased awareness of the issue.

Yet as is the case with law enforcement against all kinds of illicit trade, sometimes increased law enforcement only makes the markets more hidden. Certainly in Indonesia, sales of more politically and legally-sensitive species, such as monkeys, that are either sold outright illegally or whose trapping generates strong criticism from environmental NGOs, has been driven from public view. Nonetheless, behind closed doors, these species are usually available in many of the country’s big wildlife trading places. When in the huge Jatinegara wildlife market in Jakarta, where supposedly any animal, no matter how endangered and enigmatic can be bought, I tried to pull out my camera, I was met with a great deal of hostility and protests from local sellers and was essentially chased out of the market. One representative of an Indonesian environmental NGO, speaking on condition of anonymity, told me that tiger parts, rhino horns, or alive orangutans and Komodo dragons can all still be obtained in the Jatinegra market and from Indonesia’s other wildlife traders. Illegal pet shops in Jakarta boast that they can deliver any species within a week – and often the transaction is made over the internet.

Nonetheless, there have been some genuine successes in Indonesia’s law enforcement. In Bali, for example, the enforcement of the ban on catching sea turtles has been greatly strengthened. Used in traditional Balinese ceremonies, turtles had been caught at a rate many times surpassing the 1000 specimen catch per year allowed under local regulations. In 1999, 27,000 turtles, for example, were slaughtered. Profauna encouraged zero-catch quotas and pushed for greater law enforcement by the police and other law enforcement agencies, such as the Forestry Ministry. The fact that police units on Bali have a reputation for being less corrupt than elsewhere in Indonesia, and with greater international presence to help in the monitoring, the police confiscation of turtles increased significantly and the illegal catching decreased by 80 percent since.

The intensification of law enforcement interdiction in Indonesia has been critically enabled by the increase in animal rescue shelters. In the past, the Indonesian police often used the small number of available animal shelters as an excuse for not undertaking interdiction raids, claiming that they could not care for the rescued animals. Indeed, according to a very impressive young female Muslim veterinarian in Bali who has supervised some of the rescue shelters, about 95 percent of animals confiscated in wildlife markets or private collections are too sick and damaged to be returned to the wild. With few releases possible, because they might introduce new diseases that could devastate the wild populations, most of the recovered animals will have to be treated at the shelters for the rest of their lives or euthanized. Unfortunately, rehabilitation shelters in Indonesia have depended almost exclusively on foreign funding. Several important international donors have been disappointed with Indonesia’s performance in cracking down on the wildlife trade and have not renewed their donor commitments, leaving some of the shelters struggling to operate.

Challenges in Cracking Down on Illegal Fishing

To some extent, improvements have also been registered in Indonesia’s efforts to combat illegal domestic fishing in protected areas. The Komodo National Park provides an example. Fifteen years ago, dynamite and sodium-cyanide fishing, both extremely destructive to the marine ecosystem, were prevalent and perpetrated by local communities around the park and by fishermen from the eastern parts of Flores as well as other islands, such as Sulawesi and Sumbawa, as already mentioned above. When confronted by local communities trying to prevent the destructive fishing, fishermen from the eastern part of Flores and surrounding islands would often admit that the reason they were coming to fish in the Komodo National Park was the lack of fish available in their home areas, where local stocks were depleted as a result of the destructive fishing.

Pressure from international NGOs and intergovernmental agencies, such as UNESCO, on law enforcement agencies operating in and around the Komodo National Park stimulated better law enforcement action and diminished the dangerous illegal fishing practices. The fact that the Komodo National Park, including its extraordinary marine ecosystem, obtained high international visibility, and hence international pressure for protection, critically helped.

Surprisingly, because the issue can be construed as one of national security and certainly of national sovereignty, Indonesia has been far less capable of cracking down on illegal fishing by foreign fishing fleets, including Chinese, Taiwanese, Japanese, and Philippine, that invade its waters. Some of the Indonesian fishermen I interviewed about international illegal fishing in their waters maintained that they were afraid to confront the foreign fleets because the foreign fishing ships were presumed to be armed. They believed that the presence of guns on the fishing ships also deterred action by Indonesia’s coast guard. Some of the fear can perhaps now be offset by the creation of a community patrol “coastal watch” effort run by the Ministry of Fisheries, for which the U.S. government has installed a communications technology that allows the fishermen to report the presence of illegal fishermen in real time and thus enables a heftier law enforcement response.

Most of the interviewed fishermen, however, believed that the lack of robust law enforcement action had to do with large amounts of corruption money sloshing around in the international fishing industry which could easily buy off Indonesia’s naval and coast guard patrols. Church and NGO activists in Labuan Bajo, Flores, for example, recounted how they suspected that local police and navy officials were involved in the smuggling of the endangered Napoleon wrasse (also known as humphead wrasse), the trade in which is prohibited by several countries and whose possession in Indonesia requires special permits from the government. Nonetheless, the species is highly sought after in Taiwan, China, and other East Asian markets. Repeated tipoffs to local Labuan Bajo police and navy units regarding the illegal catching and smuggling of the wrasse fell on deaf ears, with the law enforcement agencies demanding proof from the activists before they would take any kind of law enforcement action against the identified smugglers. The activists thus invited local media to the port where the wrasse smuggling was taking place, and “by accident” spilled one of the boxes transporting the smuggled wrasses, forcing the police to acknowledge in front of flashing cameras that illegal fishing was taking place there. Nonetheless, a visit to the Chinese market in Labuan Bajo in October 2012 revealed Napoleon wrasse on sale. The trade in other exotic fishes, even if not necessarily protected species (CITES only prohibited the trade in some sharks and manta rays in March 2013), was thriving there. Local buyers were eagerly haggling with fishermen over lips from parrotfish, manta ray parts, and sharks fins.

Lessons from Indonesian Anti-Piracy Efforts for More Robust Law Enforcement Action against Illegal Fishing and Wildlife Trafficking

The anti-piracy efforts in the Strait of Malacca and around Indonesia can provide insight into the factors which can stimulate better law enforcement action by Indonesia. Before the frequency of maritime piracy spiked around the Horn of Africa and West Africa, pirate attacks on ships at sea in Strait of Malacca amounted to almost half of the world’s piracy incidents. Out of the more than 250 yearly attacks in the Strait and around Indonesia during the first half of the 2000 decade, the majority originated in Indonesia.[2] Indonesia’s archipelago provided many safe-haven opportunities for pirates, while law enforcement action against them both on land, such as on the Riau islands, and at sea was sporadic and limited at best.

As the frequency of pirate attacks kept growing, it came to present a threat to Singapore’s economy – critically dependent on the safety of its seaborne commerce and accessibility of its port, with more than 50,000 vessels carrying 40% of world’s trade passing through the Strait yearly. Backed by the United States, Singapore pressured Indonesia to take more robust action against the pirates and delivered a variety of financial incentives-- delivering technologies, patrol assets, and ultimately paying for much of the anti-piracy effort Indonesia mounted. Anti-piracy intelligence sharing among Singapore, Indonesia, and Malaysia, previously inhibited by traditional rivalries, also increased, even though many of the proposed “joint” patrols among the three navies really amounted only to “coordinated” patrols. In the latter part of the 2000 decade, piracy in the Strait fell off by about three-fourths – even though the actual number of interdiction operations on the seas remained very small. Just the greater deployment of patrolling assets and importantly actions by Indonesia against the pirates on land created a robust deterrent effect.

The fact that Singapore mounted strong pressure on Indonesia is not surprising. Nor is it surprising that ultimately Singapore had to back up the pressure by extending various modes of assistance to stimulate greater law enforcement action against the pirates. What is more interesting is that in the case of maritime piracy, unlike in the case of its many other large-scale illicit economies, such as illegal logging and mining, Indonesia was able to overcome the corruption that has long plagued its law enforcement apparatus and undermined the interdiction and deterrence efforts. In other words, it was pressure from Singapore, underwritten by material assistance from that city-state, that stimulated Indonesia’s resolve to go after the pirates. But what accounts for Indonesia’s improved capacity to carry out the law enforcement effort?

To a great extent, the answer appears to lie in the low profits and un-institutionalized form of corruption surrounding maritime piracy in the area. Unlike in the case of piracy off the Somalia coast, the profits from piracy around Indonesia were fairly low, with attacks often amounting more to robberies on the seas and in ports, rather than to long-term hostage and cargo seizure with ransom payouts in the millions of dollars. (Indeed, the “pirate” attacks around the Indonesian archipelago that have taken place over the past three to four years remained mostly thefts and robberies when ships are anchored in Indonesia’s ports.) Consequently, the bribes from piracy paid to either Indonesian coast guard or navy officials or to local government officials on land in areas that the pirates used as safe-havens were not very large, nowhere on the scale of the bribes paid by illegal logging or mining companies. Nor have the Indonesian law-enforcement agencies become addicted to the piracy bribes for their institutional budgets, unlike in the case of bribes and problematic profits from natural-resource extraction on which Indonesia’s military and law enforcement agencies have come to depend for sustaining their operating budgets.[3] The political costs Jakarta had to absorb to make law enforcement agencies act against the pirates and the muscle it had to exercise to corral local officials into compliance were far lower with respect to piracy than the political costs would be for Jakarta to enforce compliance with resource-extraction regulations. The number of political and institutional actors with a vested interest in perpetuating piracy (because of the rent payouts it generated) was also much smaller than in illegal logging and mining, and the management problem for Jakarta therefore also much simpler. The resolution of secessionist militancy in Sumatra’s Aceh region, after the 2005 peace deal, is sometimes also put forward as a factor enabling the more robust law enforcement action against the pirates.[4] But there are limitations as to how far this explanation carries, given that most of the pirate attacks did not originate from Aceh and the area was not a prime safe-haven area for the pirates. (The fact that many of the former Free Aceh Movement combatants continue to be unemployed and economically-frustrated could easily make them an easy recruitment pool for pirate businessmen. Other illicit economies, such as marijuana cultivation, have in fact been thriving in the region.)

For combatting wildlife trafficking and illegal logging in Indonesia, the anti-piracy story has two implications. On the positive side, in the case of wildlife trafficking, the vast majority of the conservation actors and Indonesian government officials I interviewed agreed that corruption surrounding wildlife trafficking was not institutionalized. Nor was it believed to generate large off-budget income for the law enforcement institutions, like logging and mining. Tackling individualized corruption, as difficult as it is, is still far simpler than weaning entire institutions of illicit budgets.

On the negative side, the bribery profits from illegal fishing for Indonesia’s law enforcement agencies are considerably higher than those from piracy. For some agencies, such as the coast guard and the navy, the bribes may well constitute corruption payoffs akin to that from mining and logging that go beyond individual bribes. That is bad news for developing more robust law enforcement action.

The barriers to international cooperation against illegal fishing are also far higher than against piracy. Major fishing offenders such as China, Taiwan, Thailand, and Vietnam would have to take on their domestic fishing industries -- a high-cost political action they have not been willing to mount, just as Indonesia has not been able to effectively take on its logging industry, for example. Vietnam and Indonesia have announced joint anti-illegal fishing patrols, but whether these will amount to more than window dressing by Vietnam yet remains to be seen.

Beefed up law enforcement action against wildlife trafficking and illegal fishing is critical. Providing effective alternative livelihoods for poor hunters is a policy that enhances human rights and human security as well as greatly facilitates law enforcement. Unfortunately, alternative livelihoods efforts are rarely effective, with auspicious circumstances mostly lacking and structural problems difficult to overcome. Ultimately, there are great limits to what even much more effective law enforcement and much more effective alternative livelihoods can accomplish unless demand for wildlife products around the world, and particularly in East Asia, is rapidly reduced. So far, demand reduction efforts in the region for bushmeat and Traditional Chinese Medicine have registered thinner, even if somewhat improving, results than demand reduction efforts to reduce the consumption of illicit drugs. But time is running out for Indonesia’s magnificent biodiversity –both on land and in the sea.

[1] For details, see Vanda Felbab-Brown, “The Disappearing Act: The Illicit Trade in Wildlife in Asia,” Working Paper No. 6, The Brookings Institution, June 2011, http://www.brookings.edu/~/media/research/files/papers/2011/6/illegal%20wildlife%20trade%20felbabbrown/06_illegal_wildlife_trade_felbabbrown.

[2] “Piracy Down 3rd Year in Row: IMB report,” Journal of Commerce Online, January 23, 2007; and “Pirate attacks Up 14 Percent Worldwide in Jan-Sept Period, Maritime Watchdog Says,” Associated Press, October 16, 2007.

[3] See, for example, International Crisis Group, “Indonesia: Natural Resources and Law Enforcement,” Aseia Report No, 29, December 20, 2001, http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/indonesia/Indonesia%20Natural%20Resources%20and%20Law%20Enforcement.pdf; and Vanda Felbab-Brown, “Indonesia Field Report III – The Orangutan’s Road: Illegal Logging and Mining in Indonesia,” The Brookings Institution, February 7, 2013, http://www.brookings.edu/research/reports/2013/02/07-indonesia-illegal-logging-mining-felbabbrown.

[4] Michael Shuman, “How to Defeat Pirates: Success in the Strait,” Time, April 22, 2009.

Authors

Vanda Felbab-Brown

Can Explosions Be a Blessing in Disguise in Resolving Turkey’s Kurdish Question?

Kemal Kirişci — Wed, 20 Mar 2013 16:00:00 -0400

Two minor explosions Tuesday night in Turkey’s capital city of Ankara come at a critical juncture. The Turkish government has been negotiating with the imprisoned leader of the PKK, Abdullah Öcalan, to bring an end to an almost decade long violence. These negotiations are taking place at a time when the governing Justice and Development Party (AKP) have seen its support among Kurds diminish considerably. The Kurdish vote had played an important role in helping the AKP come to power back in November 2002. These votes have reacquired importance as the Prime Minister, Recep Tayyip Erdoğan, contemplates whether to take a new constitution that would replace Turkey’s parliamentary system with a presidential one to a national referendum. The new constitution is expected to redefine Turkish citizenship in more liberal terms to the benefit of Kurds but also enable Erdogan to circumvent a self-imposed ban on serving more than three terms as a member of parliament. The negotiations are also seen as a means of addressing questions about the quality of Turkish democracy and concerns about rising authoritarianism. When these developments are put together with a growing recognition both among Kurds as well as Turks of the need to bring the violence to an end, it may well enhance the likelihood of this round of negotiations achieving where earlier attempts failed.

Öcalan had been leading a separatist insurgency since 1984 with the objective of setting up an independent Kurdish state in parts of Turkey and in neighboring countries populated by Kurds. Syria provided him with sanctuary until 1998, when he was forced out of the country following a threat of Turkish military intervention in Syria. After attempting to seek asylum in a number of countries, Öcalan was eventually caught in Kenya (with CIA assistance) and sentenced to life imprisonment on the island of Imralı near Istanbul. This was followed by a unilaterally declared cease-fire by the PKK and a difficult European Union (EU) led reform process which contributed to the granting of cultural rights to Kurds in Turkey. These rights ranged from the recognition of Kurdish identity, to the right to use the Kurdish language publically and in broadcasting. These were revolutionary developments in a country that had denied and repressed Kurdish identity since the early days the Turkish republic and had seen almost 40,000 people killed by violence since 1984.

The gradual emergence of new leadership from the ranks of the PKK, accompanied by a vacuum created by the U.S. intervention in Iraq led to the return of violence in the summer of 2004. This violence led to the deaths of an ever growing number of young Turkish conscripts, some of them inevitably of Kurdish origin, as well as PKK militants and coincided with a period when Turkey’s relations with the EU weakened. Nevertheless, in 2009, the Turkish government launched a “Kurdish initiative” with the intention of solving the “Kurdish problem” for good. The government did succeed in negotiating the laying down of arms by the PKK and their return to Turkey from northern Iraq where they continue to hold bases to this day. This initial step was meant to start a political process to “solve” the Kurdish problem in Turkey but it went haywire when militants put on a show of force as they entered Turkey from the border post of Habur in the fall of 2009. The pictures from Habur immediately provoked a nationalist backlash and Erdoğan, who had once adopted a reconciliatory discourse on the Kurdish issue chose to revert to a traditional anti-Kurdish populist stance used in the 1980s and 90s prior to the reform process. In sharp contrast to his 2005 position where he publicly acknowledged the sufferings of Kurds at the hands of the Turkish state and promised a political solution, Erdoğan argued there was no longer a Kurdish problem in Turkey. He argued that at most, there were problems experienced by individual citizens of Kurdish ethnicity, and that these problems would be addressed with increased ‘democracy and rule of law’.

These remarks led to a sharp decrease in popularity for the prime minister among Kurds and to the founding of the BDP, a Kurdish nationalist political party, which was elected to power at the local and national levels in 2009 and 2011. The rise of the BDP led to the virulent articulation of Kurdish political demands ranging from the use of the Kurdish language in the provision of local government services in Kurdish populated regions of Turkey to the introduction of education in Kurdish. These demands were also accompanied by increased calls for territorial autonomy for the Kurdish inhabited regions of Turkey which was also supported by Öcalan. Together with the explosion in violence, these developments led to the introduction of repressive policies by the Turkish government where an ever growing number of local Kurdish officials, politicians and journalists being imprisoned, deeply tainting Turkey’s democratic credentials. These developments created a very tense situation in Turkey at a time when the Arab Spring had just begun and Turkey was being presented as a model for the Arab world’s transformation by some, while others drew attention to Turkey’s inability to resolve its own Kurdish problem.

The pressure to address the Kurdish problem in Turkey was compounded by a growing level of frustration and fatigue from violence felt across the country as well as a constitution writing process that was going nowhere. It is against this background that the prime minister sought to bring an end to the violence with a cease-fire by authorizing the head of Turkish intelligence to hold secret talks with PKK counterparts in Oslo between 2008 and 2011. Opponents of the prime minister and this scheme, however, leaked records of these talks, provoking an abrupt suspension of the talks. The prime minister, having emerged triumphant from the national elections in the summer of 2011, persevered and in late 2012 he was able to engage the BDP in a similar but more open exercise that came to be known as the “Imralı process” which allowed repeated visits by BDP representatives and Turkish officials to Öcalan. An early attempt to derail talks by assassinating three long standing female PKK militants in Paris in January of 2013 failed as both sides of the process remained committed to it. The two explosions on Tuesday night clearly had the intention of undermining the “Imralı process” but also of preempting Öcalan’s long awaited Newroz announcement on Thursday. The question of who might have mounted these two attacks may very soon be revealed as the perpetrators have been promptly caught.

The fact that these attacks have only caused minor injuries to two individuals and some structural damage to the headquarters of AKP, may turn out to be a blessing in disguise as the initial signs appear to suggest that the “Imralı process’ will not be adversely affected. Actually, it does not look like that these explosions will unravel the negotiations. Instead they will remind the public once more about their revulsion against violence and are likely to reinforce both parties commitment to the process. Right now neither AKP nor BDP want to be seen as the spoiler. However, whether the “Imralı process” will finally lead to a political resolution of the Kurdish problem in Turkey beyond just another cease-fire is yet to be seen.

Authors

Kemal Kirişci