The Wars on Poker and Porn: America Strikes Back

After the DOJ had a busy week shutting down the three largest online poker sites and instigating criminal charges against eleven officers and directors, you would think those advocating for greater control over Americans’ lives would be content. After all, everyone knows online poker is a national menace and grave security threat; it is about time something was done about it.

But no. Social conservatives will not rest until all moral vices have been banned, so that America may be free once again. Which is why it is an absolute outrage that the DOJ has taken moves to close down the Obscenity Prosecution Task Force, even if the DOJ has offered reassurances that the elimination of the task force doesn’t mean that such prosecutions will be halted, only that it will be “[r]e-incorporating the prosecution of obscenity violations into the Child Exploitation and Obscenity Section.”

Reasons for dropping the Obscenity Task Force may include its completely inept handling of the John Stagliano case, as well as the fact that the DOJ’s own attorneys were deeply reluctant to carry out such prosecutions. But, as a disturbingly large portion of the Senate made clear in a letter to the DOJ, that is not good enough. Prosecuting porn is vital to the nation’s future, and the Senate is greatly distressed by the dearth of obscenity prosecutions that have occurred under the Obama administration:

Earlier this month, [Sen. Orrin] Hatch and 41 other senators sent a letter to Holder pushing him to bring criminal cases against “all major distributors of adult obscenity.”

“We write to urge the Department of Justice vigorously to enforce federal obscenity laws against major commercial distributors of hardcore adult pornography,” said the April 4 letter, circulated by Hatch. “We know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families and communities and the problems are only getting worse.”

I expect that, within the next week, the DOJ will follow up by announcing prosecutions against rock ‘n’ roll, indecent dancing, and overly-fatty desserts.

-Susan

China’s Assessment of Human Rights in America

Every year, the United States releases its Country Reports on Human Rights Practices, which assess the human rights records of every other state and almost-state on the planet.

And, every year, the Information Office of the State Council of the People’s Republic of China releases its own report, assessing the human rights record of precisely one country: the United States.

China’s report on the Human Rights Record of the United States in 2010 was just released, and, as always, it gives a funhouse mirror’s eye-view of the U.S.’s record. The report is an unapologetic retaliation against the U.S.’s “malicious design to pursue hegemony under the pretext of human rights”, and contains a hodgepodge of truths, half-truths, and extremely dubious statistics. It also collects approximately every negative statistic about the U.S. that any report has ever found, conveniently compiling them into one rather unshocking exposé. It is also hypocritical, of course, but that is not worth noting — any human rights assessment of another nation is bound to be hypocritical, unless maybe if you’re Sweden or Denmark or somewhere hippy like that. The problem with the Chinese report is therefore not the amount of hypocrisy it contains, but rather the amount of batshit craziness. A few of my favorite passages are as follows:

The census report released on September 16, 2010 showed that working women are paid only 77 cents for every dollar earned by a man.

Shhh, careful there, China. Wouldn’t want the MRAs to hear you make such claims, or they’ll leave lots of nasty comments on your blog.

Every year, one out of every five people is a victim of a crime in the United States. No other nation on earth has a rate that is higher.

You know, I guess it is probably true that no nation on earth is more likely to have a citizen be a victim of crime in the United States than the United States is. That is the only to read those sentences that makes any sort of sense at all.

The number of American people without health insurance increased progressively every year.

China must have missed the news that we’re Socialists, now.

The Atlanta Journal-Constitution reported on November 19, 2010 that a large group of human rights organizations prepared to hold a vigil in South Georgia in support of suspected illegal immigrants being held in a prison in Lumpkin.

Ah, good old Lumpkin County. As goes Lumpkin, so goes the nation.

The ACLU and the U.S. Travel Association have been getting thousands of complaints about airport security measures.

Allowing domestic civil rights groups and private citizens to complain about their government with impunity is definitely a sign of human rights abuses.

A report on The Wall Street Journal on September 7, 2010, said the Department of Homeland Security (DHS) was sued over its policies that allegedly authorize the search and seizure of laptops, cellphones and other electronic devices without a reasonable suspicion of wrongdoing. The policies were claimed to leave no limit on how long the DHS can keep a traveler’ s devices or on the scope of private information that can be searched, copied or detained. There is no provision for judicial approval or supervision.

And the founding fathers’ failure to plug up the border search exception is iron-clad proof that they had zero respect for human liberty.

Minority groups confront discrimination in their employment and occupation. The black people are treated unfairly or excluded in promotion, welfare and employment.

The black people?

The New York Times reported on April 26, 2010 that Wal-Mart was accused of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion in the biggest employment discrimination case in the nation’s history.

Allowing judicial redress for claims of wrongful discrimination is yet another blatant sign of political oppression.

Bullying is most prevalent in third grade, when almost 25 percent of students reported being bullied two, three or more times a month.

American Third Grade Classrooms: Fourth Member of the Axis of Evil.

Almost 1.8 million [children] are abducted and nearly 600,000 children live in foster care.

That’s right. 1.8 million children are abducted every year, and the U.S. is doing nothing to stop it. Why won’t someone think of the children!

Pornographic content is rampant on the Internet and severely harms American children.

Only by implementing firewalls that censor 90% of the internet can a nation truly protect human rights. And the children.

While advocating Internet freedom, the U.S. in fact imposes fairly strict restriction on cyberspace. On June 24, 2010, the U.S. Senate Committee on Homeland Security and Governmental Affairs approved the Protecting Cyberspace as a National Asset Act, which will give the federal government ‘absolute power’ to shut down the Internet under a declared national emergency… The United States applies double standards on Internet freedom by requesting unrestricted ‘Internet freedom’ in other countries, which becomes an important diplomatic tool for the United States to impose pressure and seek hegemony, and imposing strict restriction within its territory.

Wait, what the hell? Where on earth did China get that idea…

Handing government the power to control the Internet will only be the first step towards a greatly restricted Internet system, whereby individual IDs and government permission would be required to operate a website (Prison Planet.com, June 25, 2010).

Ohhhhh, well that explains a lot.

As a final note, report is also apparently blind to the irony that China’s access to these facts about the U.S. human rights record is only possible due to the U.S.’s liberal stances towards freedom of speech.

However, while the U.S.’s Country Reports on Human Rights Practices is an invaluable resource for monitoring the protections afforded to human rights worldwide, and one that is not currently matched by any other state or NGO, the Country Reports do inevitably and unavoidably leave the United States wide open to charges of hypocrisy and double standards. And that’s fine — there definitely is something hypocritical about highlighting others’ failures where you yourself still have work to do. But the United States has acknowledged and to some extent embraced its critics’ charges:

We do not consider views about our performance voiced by others in the international community to be interference in our internal affairs, nor should other governments regard expressions about their performance as such. Indeed, under the Universal Declaration of Human Rights, it is the right and the responsibility of ‘every individual and every organ of society to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.’

Self-criticism has never been a natural talent of sovereigns, and it is a safe bet that if the U.S. did include a self-assessment of its human rights record, it would have been nothing more than a philosophical puff-piece or abstract celebration of Freedom Yay!! — as was, say, the U.S.’s report of its human rights records, submitted to the UNHRC in November, 2010. So to the extent that there is a void where it comes to examining America’s human rights record, China — and Russia — are not wrong. But the solution is not to call on the U.S. to stop highlighting others’ failures, but to have more even states join in on the fun so that they, too, can call out the human rights abuses of other nations whenever they get the chance.

Like, for instance, the U.S.’s treatment of PFC Manning. I still don’t get how the Chinese report went for over 13 pages, and never once mentioned that.

-Susan

ATS Reversal Watch: M.C. v. Bianchi

I thought I’d drag myself out of blogger purgatory to make a brief comment on a recent decision out of the Eastern District of Pennsylvania that I noticed earlier this evening. In M.C. v. Bianchi, Chief Judge Bartle denied a Motion to Dismiss on the basis that ATS jurisdiction can be conferred over non-state actors based purely on the heinousness of their actions. Assuming there is an appeal, I think it’s a safe bet the Third Circuit will swat this one down once it is reviewed, because the decision’s basis under international law is rather shaky.

My gut feeling is this is just a case of hard facts make bad law, because Defendant Anthony Bianchi, millionaire and convicted serial child rapist, is one of the least sympathetic litigants you could possibly have, and it’s not hard to see how one might be very strongly motivated to extend any assistance available to the unnamed minor plaintiffs.

But being a really horrible person does not magically invoke the jurisdiction of the ATS. Judge Bartle seems to have taken the requirement that only ‘extreme’ violations of international law are sufficient to invoke ATS liability to mean that, the more morally heinous an act is, the greater the likelihood is that there exists a cause of action for a tort in violation of the law of nations:

“Given the young age of his victims and the frequency with which Bianchi engaged in these heinous acts, this case is extreme enough for subject matter jurisdiction to exist under the ATS. What occurred here is a serious transgression of international law that is ‘specific, universal, and obligatory.’ Under all the circumstances, we conclude that Bianchi’s sexual assault of children through sex tourism falls within the ‘very limited category’ of claims cognizable under the ATS as a violation of the law of nations.” Quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732.

To put it charitably, the decision is something of an international law train wreck. Its primary justification seems to be the existence of a international instrument condemning acts like those committed by Bianchi:

“[I]n support of this court’s jurisdiction, plaintiffs point to the Optional Protocol on the Rights of the Child, Sale of Children, Child Prostitution and Child Pornography (“Optional Protocol”).” … The Optional Protocol bans the ‘offering, delivering or accepting, by whatever means, a child for the purpose of … [s]exual exploitation of the child.’ S. Treaty Doc. No. 106-37 at art. 3(1)(a)(i). It also declares that parties ‘shall ensure that all child victims of the offences described in the present protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible.’ Id. at art. 9(4).

Although the U.S. is a signatory to the Optional Protocol, because that treaty is not self-executing, Plaintiffs had to go the law-of-nations route for the ATS suit, rather than relying on the treaty alone. But calling something ‘customary international law,’ even if it were, does not mean that it automatically comes with a cause of action against private parties. Judge Bartle notes that “‘[The Optional Protocol] also provides that ‘each State Party shall take measures, where appropriate, to establish the liability of legal persons’ for these offenses, both criminal and civil,” and then blithely goes on to assume, “[t]hus, the Optional Protocol clearly contemplates the liability of private individuals.” But that’s not what it says at all. The treaty clearly contemplates obligating nations to prohibit child sex crimes as a matter of domestic law, not making child sex crimes in themselves a violation of international law.

Other than the Optional Protocol, the decision’s basis for finding a violation of international law is based on the following:

“[C]ourts across the United States have acknowledged that child sex tourism … is uniformly admonished by the international community as reprehensible.”

“[Bianchi's] crimes represent a global problem, whereby individuals from developed nations travel to less developed nations to prey on young children from impoverished communities.”

“Courts have been willing to recognize claims by children under the ATS, even where the same claims would not be actionable if brought by adults.” Citing (questionably) Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1019-22 (S.D. Ind. 2007).”

But none of this is sufficient to establish that Bianchi’s crimes were “a serious transgression of international law that is ‘specific, universal, and obligatory.’” His actions were evil and illegal, but not a matter of the law of nations.

Judge Bartle’s judicial over-reach in the name of universal jurisdiction is by no means an isolated decision. There is in fact fairly ample, if scattered, support for the idea that jurisdiction over Bianchi would be proper, under the argument that international commercialized child rape (I cannot bring myself to use the monstrously inadequate euphemism of ‘sex tourism’) is a modern crime akin to the traditional offenses of piracy and slavery. Eugene Kontorovich [PDF] has called this claim the “piracy analogy”. The piracy analogy is

the argument that [universal jurisdiction] is based on principles implicit in the earlier, piracy-only universal jurisdiction. According to the piracy analogy, international law treated piracy as universally cognizable because of its extraordinary heinousness. Universal jurisdiction was never about piracy per se, the argument goes, but about allowing any nation to punish the world’s worst and most heinous crimes. Thus universal jurisdiction over human rights violations is simply an application of the well-settled principle that the most heinous offenses are universally cognizable and not, as critics contend, a radical and dangerous encroachment on nations’ sovereignty.

The Bianchi decision is a text-book example of the piracy analogy in action, and of the mistaken belief that the world’s evils are best fought by expanding the nebulous jurisdictional reach of international law to encompass them. However, while states can and do use international law as a means of combating offenses that are universally condemned, as they have with the Option Protocol on the Rights of the Child, the mere fact that an offense can be regulated by international law cannot transform it into a violation of international law.

-Susan