Accidental Blogger

Prompted by comments relating to Ruchira’s announcement that she intends not to post as frequently as usual, I thought I might at least contribute a cursory account of the conference I attended last week in D.C., the 101st meeting of ASIL. Let me note at the outset that Ruchira’s and Joe’s lapse into "blah"-ging has not gone unpredicted.  The Gartner group released a study last year indicating that blogging is due to peak this year. (I can’t seem to find the actual report, so this news report will have to do.)

At ASIL, I attended a number of sessions and co-moderated a panel addressing Web
2.0 applications in international legal scholarly communication and
research.  I won’t recount each of the sessions, but focus instead on
one of them, an extremely well-attended panel discussing The Supreme
Court and the War on Terrorism, described in the conference program as
follows:

The  Supreme Court’s June 2006 decision in Hamdan  v. Rumsfeld
is extraordinarily rich in its assessment of U.S. foreign affairs
powers in time of war and its use of international law as a check on
executive power.  The immediate effect of the decision was to preclude
trials before the U.S. administration’s specially-created military
commissions, but the broader ramifications of the Court’s decision are
still evolving.  This panel of experts representing governments,
non-governmental organizations, and the legal academy with divergent
views on the Hamdan decision will examine the decision,
subsequent developments, and the longer-term implications for the
inter-branch balance of power in time of war or national crisis.

The panel consisted of moderator
Elizabeth Rindskopf Parker (University of the Pacific, McGeorge School
of Law), and panelists John B. Bellinger III (U.S. Department of
State), Sir Franklin Berman (Essex
Court Chambers), Sean Murphy (George Washington University School of
Law), Jide Nzelibe (Northwestern University School of Law), and Dinah
PoKempner (Human Rights Watch). I admit I know little about any of these participants, although I am aware that Bellinger broke new ground when he joined Opinio Juris as a guest blogger early this year.

Needless to say, the discussion was lively, focusing on Congress’ response to the Hamdan decision by its passage of the Military Commissions Act of 2006, which arguably affords a dangerously high level of discretion to the Executive Branch in matters relating to establishment of military commissions, suspension of habeas corpus, and mitigation of other fundamental liberties in times of "war" (referred to, in an effort to exercise a modicum of neutrality in the dispute, as "struggle" by Prof. Murphy). Ms. PoKempner, counsel for HRW, was not surprisingly among the most emphatic critics of the MCA and the administration on the panel. If memory serves me, she even refused to refer to "executive" privilege, noting instead that the MCA gives "the President" virtually unrestrained powers, a brazen instance of rule by an individual man rather than law. Prof. Nzelibe was extremely pessimistic. We are foolish, he argued, for imagining that the Supreme Court (in Hamdan, for instance) has any effect on Congress or the Executive. They will use the Court’s proclamations as opportunities to promote their own ambitions, but otherwise ignore them. His was a cynical version of a sort of vulgar legal realism, one with which I admit I have some sympathy, despite numerous counterexamples that could be enlisted to refute it.

But the real performance was Mr. Bellinger’s. He knew of course that he was in the hot seat. He is obviously very smart and he has quite a pleasant demeanor, a refreshing alternative to most of the public faces of this administration. Ms. PoKempner highlighted this characteristic more than once by referring to him as "gracious." I believe that although she very evidently sincerely admires him for his intellect and coridality, she intended that particular epithet ironically. And he donned it comfortably, ultimately justifying vague statutory provisions—regarding, for example, what constitutes material support of an enemy combatant—as fair responses to inherently difficult governmental responsibilities.  "Trust us," he pleaded, in almost so many words. Wait until you have evidence that an official has abused his discretion, then make your claim, he advised. Hypothetically, this is pragmatic advice, but under the circumstances one can only assume that Mr. Bellinger is one of the administration’s good, even gracious, cops.