Law

Why Honduras must bring back the very man most responsible for the crisis.

By Kevin Casas-Zamora

The old demons that have given Latin America a tragic political history are dormant but hardly dead. On Sunday, Honduras's president, Manuel Zelaya, was ousted by the military, capping weeks of tension brought about by the president's ill-conceived attempt to engineer his own reelection. As U.S. founding father John Adams might have put it, Zelaya chose to have a government of men and not of laws.

Zelaya's fatal mistake was in organizing a de facto referendum to test the idea of allowing him a second term. Honduras's Constitution explicitly forbids holding referendums -- let alone an unsanctioned "popular consultation" -- to amend it and, more specifically, to modify the presidential term. Unsurprisingly, the president's idea met with resistance from Congress, nearly all political parties (including his own), the press, the business community, electoral authorities, and, crucially, the Supreme Court, which deemed the whole endeavor illegal.

Last week, when Zelaya ordered the armed forces to distribute the electoral material to carry out what he called an "opinion poll," the military commander refused to comply and was summarily dismissed (he was later reinstated by the Supreme Court). The president then cited the troubling history of military intervention in Honduran politics, a past that the country -- under more prudent governments -- had made great strides in leaving behind in the past two decades. He neglected to mention that the order he had issued was illegal.

Then Zelaya -- a late convert to Venezuelan President Hugo Chávez's Bolivarian doctrine -- introduced an ideological rationale for his ambition: creating a "participatory" democracy in Honduras and subverting the country's dominant oligarchy (of which he is the quintessential product). Chávez and Fidel Castro, in an ironic turn of events given the two men's history, sternly denounced the danger of a military takeover in Honduras.

There was, of course, nothing ideological about Zelaya's plan. He never bothered to explain what kind of constitution he wanted, other than one that allowed his own reelection. In that respect, Zelaya is less a disciple of Chávez than of Nicaraguan President Daniel Ortega, another unsavory character bereft of any ideal other than staying in power by hook or by crook.

Now the Honduran military has responded in kind: An illegal referendum has met an illegal military intervention, with the avowed intention of protecting the Constitution. Zelaya's civilian opponents, meanwhile, are celebrating. For the past week, the Honduran Congress has waxed lyrical about the armed forces as the guarantors of the Constitution, a disturbing notion for Latin Americans. At the very least, we are witnessing in Honduras the return of the unfortunate role of the military as the ultimate referee in political conflicts among civilian leaders, a huge step back in the region's consolidation of democracy.

That's why Zelaya, though he bears by far the greater responsibility for this crisis, must be reinstated in his position as the legitimate president of Honduras. The Organization of American States, the neighboring countries, and the U.S. government (which is still enormously influential in Honduras) should demand no less. They should also call upon all political actors in Honduras to take a deep breath and do what mature democracies do: allow the law to deal with those who try to step outside it. If Zelaya must be prosecuted for his harebrained attempt to subvert the Honduran Constitution, then let the courts proceed as rigorously as possible. And the same applies to the coup perpetrators. If Honduras is to have a decent future, its politicians and soldiers, in equal measure, must learn that the road to democracy and development runs through the rule of law.

Dark clouds are gathering again over Central America, and the United States would do well to pay attention. The current crisis in Honduras, the governance problems in Guatemala, and the ongoing destruction of democracy in Nicaragua form an ominous trend. U.S. President Barack Obama now has the opportunity to show both friends and foes in the Western Hemisphere that the United States has finally decided to side unequivocally with democracy -- and that the rule of law matters in Tegucigalpa as much as it does in Washington.

Kevin Casas-Zamora is a senior fellow at the Brookings Institution. He was vice president and minister of planning of Costa Rica from 2006 to 2007.

Photo: ORLANDO SIERRA/AFP/Getty Images

What NATO and Kabul can learn from their enemy.

By Patrick Devenny

Last month during a visit to Kabul, Afghanistan's minister of the interior, Hanif Atmar, showed Joint Chiefs of Staff chairman Mike Mullen and Amb. Richard Holbrooke a particularly sobering map. Atmar shaded two thirds of Helmand Province in Afghanistan's south -- an area home to about 750,000 Afghans -- to denote its status under Taliban control.

It is not news that swaths of Afghanistan -- particularly rural Pashtun areas in the south -- now fall under the influence of the Taliban's "shadow government." What has been overlooked is why. Force certainly plays a part as the Taliban conquers new territory. But it's the insurgents' management structure -- one that supplements rather than supplants existing tribal structures -- that explains the Taliban's staying power. NATO and Kabul aren't being outfought in Helmand; they're being outgoverned.

So far, NATO has responded to Taliban expansion by reinforcing its units in the area, boosting its firepower, and combating the poppy economy through interdiction and crop substitution. That's the easy part. The real challenge will come after territory is regained and NATO begins its fight for the population -- not just the land. To get this next phase right, NATO and its Afghan allies would do well to take a lesson from the force that has been managing much of the south for the last two years: the Taliban. Yes, time to take advice from the enemy. What methods of "guerrilla governance" are attracting the support of local populations? And how could NATO and Afghan forces use them to "clear, hold, and build?" 

There is no better place to start than the Taliban's court system, staffed by groups of religious scholars who review disputes over land allocation and property rights -- issues of vital importance in pastoral Afghanistan. There are a dozen or so courts like this in Southern Afghanistan who settle cases and sentence local criminals. Their justice is visible, immediate, and familiar to Afghans who have relied on informal conflict resolution for centuries. The courts' attraction is rooted in the absence of effective alternatives, rather than ideological affinity. Afghans, desperate for some measure of order, will often turn to Taliban courts even if they do not support the organization's overall goals. Indeed, though many have dismissed the courts as a mere PR gambit, a sideshow to the Taliban's main operations. But PR might be just the point: The courts are better at gaining local support than dozens of gunmen or bomb-makers ever could.

If NATO and the Afghan government want to cement any future military gains in the south, they will have to offer an alternative to justice à la Taliban. The official answer is to build up the nascent Afghan court system -- a near impossible long-term task unlikely to win hearts and minds anytime soon. Realistically, another option would work far better: accept informal local and tribal courts as reality and explore new avenues of interaction and, possibly, support. In the near-term, that is far more doable than fixing a judicial system that is largely perceived as corrupt and is certainly understaffed. (There are just six judges in Kandahar to serve nearly 1 million people.)

Relying on traditional mediation under tribal or religious elders is hardly a radical idea; the U.S. military in Iraq has been doing it for years. In areas with strong tribal authority and sparse government representation, U.S. military units have been walking a tightrope -- implicitly allowing tribal law while halting any excesses.

In Afghanistan, the existence of local courts is a fait accompli -- the only question is who will influence them, NATO or the Taliban? Captain David R.D. Nauta, a Dutch legal advisor writing in NATO's in-house journal, recently endorsed tribal law as a stopgap measure. The formal court system, he writes, is "two decades away," and informal courts, which are "crucial to restore some degree of rule of law," need to be utilized by NATO and Afghan forces in the meantime.

In the coming months, NATO forces will venture into areas long held hostage by the Taliban or affiliated elements. If they bring empty promises of a fair justice system in some distant future, the Taliban will be handed a victory, regardless of the military situation. Or, if NATO takes a chapter from the Taliban book, it might just beat the insurgents at their own game.

Patrick Devenny is an employee of the U.S. Department of Defense. The views expressed in this article are his own.

Photo by John Moore/Getty Images

Yale legal scholar Harold Koh understands foreign legal systems -- that doesn't mean he's going to implement them here.

By Ronald Slye

U.S. President Barack Obama's nomination of Harold Hongju Koh, the dean of Yale Law School, for the position of legal advisor to the State Department spurred uproarious criticism. A number of media commentators argued that his espousal of a transnationalist legal perspective makes him a dangerous choice. The New York Post branded him a member of the "axis of disobedience." The National Review reprinted a letter castigating Koh for saying he could imagine precepts of sharia law at work in the United States.

These critics argue that a transnationalist approach subordinates U.S. national interests to global or foreign ones (an especially timely issue given the global legal wrangling over the United States' "enhanced interrogations" policy). But this view is incorrect and based upon a lack of understanding of this dynamic legal approach.

All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law's traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law -- that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.

This is hardly a radical approach -- in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether "liberal" or "conservative," concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.

Additionally, the power to create and enforce laws now lies outside capital courtrooms -- and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.

Finally, since the founding of the republic, international law has influenced U.S. law and vice versa. All three branches of the U.S. government have incorporated, interpreted, resisted, and responded to international law. And, especially since World War II, the United States has played a proud and instrumental role in developing it and ensuring its enforcement. Those interactions are the focus of a transnationalist legal approach to law, and why Koh must understand transnationalism to act as the State Department's legal advisor.

Ultimately, legal transnationalism, particularly as articulated by Koh, falls squarely within the mainstream. Koh himself is a moderate, having worked for both the Republican Reagan and Democratic Clinton administrations. Everyone from Laurence Tribe of Harvard Law School to Dean Kenneth Starr at Pepperdine University School of Law, as well as half the country's law school deans, supports him. This is not surprising. We are, of course, talking about the legal office that most directly engages with issues of international law. Why would we not want one of the foremost international law experts in the country in that position?

Ronald Slye is an associate professor of law at Seattle University and the director of its international and comparative law program.

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The battle of ideas behind China's naval agression.

By James Kraska and Brian Wilson

China’s bold and dangerous maneuvers against the USNS Impeccable, a U.S. Navy military survey vessel that was operating about 120 km from the island of Hainan in the East China Sea, is the latest salvo in China's ongoing campaign to upset traditional notions of freedom of navigation in order to deny access to its coastal waters, or littorals, by foreign warships and aircraft. The event marks the first test of the Obama administration regarding China’s efforts to reshape the international law of the sea.

Following the Cold War, the littorals have emerged as the primary maritime battleground for peace and stability. International law, as reflected in the 1982 Law of the Sea Convention, recognizes that all states enjoy the right to conduct military activities throughout the near shore environment -- generally beyond the 12 nautical mile (nm) territorial sea and extending out to 200 nm (one nm = 1.85 km). This coastal zone is the primary operating area for “Seabasing,” amphibious, expeditionary, and littoral operations, and generally encompasses the exclusive economic zone (EEZ) of a coastal state, a special resource zone created by the Law of the Sea. Although coastal states have exclusive rights to exploit natural resources in the zone, they cannot claim a  security interest in the area, agreed Shen Dingli, director of the Center of American Studies at Shanghai’s Fudan University. Regardless, China wants to exert control that extends beyond its economic interests, creating the potential for conflict with the U.S. Navy. Dingli stated, “China considers that international law only allows innocent passage for military vessels [in the EEZ], not activities that could be considered to have a military purpose.”

Chinese sailors getting drenched by fire hoses while harassing a U.S. Navy ship might make a great headline,, but the real fight is going on much more quietly on land. China has recently begun to engage in a resourceful legal warfare, or “lawfare” strategy to deny access to its coastal seas to warships and aircraft of the United States, Japan, and other countries in the region. This strategy, which was set forth in a recent Chinese defense white paper, proposed the“gradual extension of strategic depth for offshore defensive operations,” and for “enhancing [Chinese] capabilities in integrated maritime operations and nuclear counterattacks.”

A 2007 Department of Defense report to Congress on China’s military power explains that Chinese strategists have taken an increasing interest in international law as an instrument to deter adversaries prior to combat. Through an orchestrated program of scholarly articles and symposia, China is working to shape international opinion in favor of a distorted interpretation of the Law of the Sea by shifting scholarly views and national perspectives away from long-accepted norms of freedom of navigation and toward interpretations of increased coastal state sovereign authority. By doing so, China is misreading the law of the sea.

The United States should ensure navigational freedom and littoral access as a cornerstone of world maritime security. The U.S. Navy has spent hundreds of millions on building a new generation of high-tech Littoral Combat Ships and implementing “Seabasing” amphibious warfare tactics to effectively operate in the coastal zone—capability that is undermined by restrictive interpretations of the law. But all this planning will be for naught if China continues to advance on the battlefield of international law. The United States would be on a far stronger footing at diplomatic summits and military-to-military meetings if it joined the 1982 Law of the Sea Convention. To ensure the right of U.S. vessels to enjoy unhindered global mobility, the United States should continue resisting excessive coastal state maritime claims through diplomacy and operational challenges.

James Kraska  is a professor of International Law at the Naval War College, a guest investigator at the Marine Policy Center, Woods Hole Oceanographic Institution, and previously served as the oceans policy adviser for the Director of Strategic Plans & Policy, Joint Chiefs of Staff. Brian Wilson leads a Navy region legal office in Washington, D.C. is an MIT Seminar XXI fellow, and previously served as oceans policy adviser for the Under Secretary of Defense for Policy. The views are those of the authors and do not represent the official policy or position of the Department of Defense.

Closing Gitmo is the right decision; now the really hard work starts.

by Matthew Waxman

Today, U.S. President Barack Obama suspended military commissions at the detention facility at Guantánamo Bay, Cuba, and it is widely expected that later this week he will order its closure. That's the right thing to do. So is leaving options open to get it done, as Obama has. He'll need that flexibility. Proclaiming an intention to close Guantánamo is the easy part; actually doing it is another thing. Even harder will be crafting a new detention policy and legal regime for a post-Guantánamo world. And Obama has offered few details of how he will do so.

A few major elements of the new administration's Guantánamo closure plan are already clear. First, as to those detainees who are not considered the most dangerous, it will step up efforts to transfer them to their home countries (or third countries) that can be trusted to deal with any continuing security threat and not mistreat them. The Bush administration has already sent home two thirds of the roughly 800 total Guantánamo detainees this way, and the new administration hopes its diplomatic goodwill will energize this process.

Second, as to those detainees it seeks to keep locked up, the new administration will pore over the evidence to see if criminal prosecutions can be brought effectively in federal court and without risking disclosure of critical intelligence sources and methods.

The big question is what to do with any detainees who are too dangerous or heinous to send home but who cannot be effectively prosecuted. Some expect this category to be very small, maybe even zero. Don't rest assured. The recent withdrawal of charges against the alleged "20th hijacker," Mohamed al-Kahtani, due to his improper treatment at the hands of interrogators is but one example of the difficulties Obama will face. The government has expanded criminal statutes for terrorism since 9/11, and courts have gained experience in handling terrorism trials. But even when the information linking some of the most dangerous suspects to al Qaeda terrorism is reliable, it may not be usable or admissible in court.

If federal prosecutions aren't workable in many cases, and releasing the most dangerous detainees is ruled out, the new administration has several options -- all of them with significant downsides. It could continue to hold current and future detainees in U.S. facilities as "enemy combatants" and let current habeas corpus litigation continue through the courts. Or it could try to prosecute them in reformed military commissions with more lenient evidentiary rules. But both these options look much like the deeply discredited Bush administration policy, only moved inside U.S. borders.

Another option would be to work with Congress on new legislation authorizing "administrative detention" for periods of time of a carefully limited category of detainees, pursuant to strict standards and robust judicial review. Opponents of this approach justifiably worry that such laws would institutionalize detention without trial.

Any closure plan will entail risks and difficult trade-offs. The new administration should not hurry to adopt new detention schemes that lack the established features and protections of American criminal trials. But nor should it rule out legal tools that might durably protect both liberty and security within constitutional and international legal bounds. Either way, the thorny problems of detaining and interrogating terrorism suspects picked up in lawless regions or amid covert intelligence operations will persist long after the 250 remaining Guantánamo cases are resolved. Obama may close Guantánamo, but the complex legal and policy challenges that led to its creation are not going away anytime soon.

Matthew Waxman is associate professor at Columbia Law School, adjunct senior fellow at the Council on Foreign Relations, and member of the Hoover Institution Task Force on National Security and Law. He previously held senior positions at the U.S. State Department, Defense Department, and National Security Council.

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