Chafin v. Chafin (February 19, 2013)
Click here for
document (approximately 23 pages)
The
Supreme Court of the United States decided in Chafin
v. Chafin that the
return of a child to his or her habitual place of residence under the Hague
Convention on the Civil Aspects of International Child Abduction ("the
Convention") and the corresponding domestic implementing legislation, the
International Child Abduction Remedies Act ("ICARA"), does not render
an appeal of the return order moot.
The Convention seeks "to secure
the prompt return of children wrongfully removed to or retained in any
Contracting State" and "to ensure that rights of custody and of
access under the law of one Contracting State are effectively respected in the
other Contracting States." ICARA grants both federal and state courts
jurisdiction over actions arising under the Convention, and directs them to
decide cases according to the Convention. If courts find that children are
wrongfully removed or retained, the children "are to be promptly
returned."
The petitioner in the case, Jeffrey
Lee Chafin, is a U.S. citizen and serves in the U.S. Army. While stationed in
Germany in 2006, he married Lynne Hales Chafin, a citizen of the United
Kingdom. In 2007, they had a daughter, E. C.. During the same year, Mr. Chafin
was deployed to Afghanistan, and Ms. Chafin took E. C. to Scotland. Mr. Chafin
was "eventually transferred" to Huntsville, Alabama. In 2010, Ms.
Chafin and E. C. joined him there, and shortly after, Mr. Chafin filed for
divorce and child custody in an Alabama state court. Later that year, Ms.
Chafin was arrested for domestic violence, which triggered her deportation in
February 2011 because she had overstayed her visa. The child stayed with Mr.
Chafin for several months. In May 2011, Ms. Chafin filed a petition in the U.S.
District Court for the Northern District of Alabama under the Convention and
ICARA seeking an order for E. C.'s return to Scotland. At the conclusion of a
bench trial, the District Court concluded that E. C.'s country of habitual
residence was Scotland and granted Ms. Chafin's petition and order of return.
"Within hours," Ms. Chafin departed with the child for Scotland, where
she initiated custody proceedings that resulted in a grant of interim custody
and a preliminary injunction prohibiting Mr. Chafin from removing E. C. from
Scotland.
Mr. Chafin appealed the District Court
order to the Court of Appeals for the Eleventh Circuit. The Circuit Court
dismissed Mr. Chafin's appeal as moot because "an appeal of a Convention
return order was moot when the child had been returned to the foreign country,
because the court 'became powerless' to grant relief." The case was
remanded to the District Court "with instructions to dismiss the suit as
moot and vacate its order." The District Court complied and also ordered
Mr. Chafin to pay Ms. Chafin over $94,000 in fees associated with the dispute.
Mr. Chafin's original child custody proceeding in state court was dismissed for
lack of jurisdiction, and the Alabama Court of Civil Appeals affirmed, relying
on the U.S. District Court's finding that the child's habitual residence was in
Scotland.
The United States Supreme Court
granted certiorari. The Court, in an opinion by Chief Justice Roberts,
concluded that "this dispute is still very much alive" because the
parties continue to contest the location of the habitual residence of the
child, both parties seek custody of the child, and Mr. Chafin wants the order
to pay Ms. Chafin over $94,000 vacated. The Supreme Court noted that "Mr.
Chafin is asking for typical appellate relief: that the Court of Appeals
reverse the District Court and that the District Court undo what it has done. .
. . The question is whether such relief would be effectual in this case."
The Court found that the uncertainty of enforcement does not render the case
moot, writing that "[a] re-return order may not result in the return of E.
C. to the United States, just as an order that an insolvent defendant pay $100
million may not make the plaintiff rich. But it cannot be said that the parties
here have no 'concrete interest' in whether Mr. Chafin secures a re-return
order."
The Supreme Court also considered Ms.
Chafin's policy arguments that the Convention and ICARA stress the importance
of the prompt return of children wrongfully removed or retained, and the
possible detriment to children repeatedly transported across international
borders. It found that the "familiar judicial tools" of expedited
proceedings and the grant of stays would be sufficient. In the Court's
analysis, if it found that after a child's return a case becomes moot, lower
courts would be more likely to grant stays, which would conflict with the
Convention's mandate of prompt return to a child's country of habitual
residence. Such routine stays might also increase the number of appeals, which
would have the same effect. Finally, a mootness holding in the case might also
encourage flight in future Hague Convention cases, in an attempt by prevailing
parents to moot the case.
The
Supreme Court announced that in the future, courts should apply the four
traditional stay factors of Nken
v. Holder, 556 U.S. 418, 434 (2009) in considering stays of return orders.
It also directed district and appellate courts to "take steps to decide
these cases as expeditiously as possible."
Justice Ginsburg, joined by Justices
Scalia and Breyer, wrote a concurring opinion stressing the temporal problem
posed by this case. The concurring opinion also discusses the procedures
followed in England and Wales to prevent delay in deciding these types of cases
and encourages "rulemakers and legislators" to "pay sustained
attention to the means by which the United States can best serve the Convention’s
aims."
Judge
Grants Defense Lawyers Access to Guantanamo Camp (February 21, 2013)
Click here for
news story (approximately 1 page)
NPR
reports that Army Colonel James Pohl, the judge presiding over the September 11
military commissions, for the first time granted the defense teams access to
the secret section of the Guantanamo Bay detention center, Camp 7, where the
accused are held. Pohl ruled that "three members of each team can visit
once, for no more than 12 continuous hours," but that they are prohibited
from interviewing guards. This is less than what was requested by defense
counsel, who reportedly requested multiple visits and wanted to spend
forty-eight hours inside the camp. The order, when declassified, will be
available on the Military Commissions website.
Executive
Order - Improving Critical Infrastructure Cybersecurity (Feb. 12, 2013)
Click here for
document (approximately 4 pages)
On
February 12, 2013, President Barack Obama signed an Executive Order on
cybersecurity. According to a White House Press Release, the
Order will "strengthen the cybersecurity of critical infrastructure by
increasing information sharing and by jointly developing and implementing a
framework of cybersecurity practices with [U.S.] industry partners." In
particular, the Order expands the voluntary Enhanced Cybersecurity Services
program, allowing for better information sharing on cyber threat information
and protection efforts. It also charges the National Institute of Standards and
Technology with developing a framework of cybersecurity practices to reduce
cyber risks to critical infrastructure.
U.S.
Files WTO Dispute Against India on Solar Panel Products (Feb. 12, 2013)
Click here for
press release (approximately 1 pages)
On February 12, 2013, the United
States initiated a World Trade Organization dispute with India over solar panel
products. According to a WTO press release, "the United States
claims that India requires solar power developers to buy and use domestic solar
cells and solar modules" in order to benefit from certain government
programs or to enter into contracts with the National Power Company. The
U.S. claims this discriminates against foreign solar equipment manufacturers.
U.S.
Supreme Court Grants Certiorari in Bond
v. United States (Jan.
18, 2013)
Click here for cert. order (approximately 1 page)
The
U.S. Supreme Court granted certiorari in Bond
v. United States. The appeal was brought by a Pennsylvania woman
prosecuted for attempting to poison her husband's lover. Bond argues that
her prosecution—brought pursuant to the federal law implementing the Chemical
Weapons Convention—is unconstitutional because, so applied, that law exceeds
Congress' authority under the Constitution. The Third Circuit Court of
Appeals dismissed Bond's claim, concluding it was obliged to do so because the
prosecution was undertaken pursuant to a statute enacted by Congress implementing
a valid treaty, and the Supreme Court, in its 1920 decision in Missouri v.
Holland, held that "if [a] treaty is valid there can be no dispute about
the validity of the statute [implementing that treaty] under Article 1, Section
8 [of the Constitution], as a necessary and proper means to execute the powers
of the Government."
The Supreme Court has framed two
questions to be argued on appeal:
Do
the Constitution's structural limits on federal authority impose any
constraints on the scope of Congress' authority to enact legislation to
implement a valid treaty, at least in circumstances where the federal statute,
as applied, goes far beyond the scope of the treaty, intrudes on traditional
state prerogatives, and is concededly unnecessary to satisfy the government's
treaty obligations?
Can the provisions of the Chemical Weapons Convention Implementation Act . . .
be interpreted not to reach ordinary poisoning cases, which have been
adequately handled by state and local authorities since the Framing, in order
to avoid the difficult constitutional questions involving the scope of and
continuing vitality of this Court's decision in Missouri v. Holland?
AgudasChasideiChabad
of the United States v. Russian Federation (Jan. 16, 2013)
Click here for
decision (approximately 10 pages)
The U.S. District Court for the
District of Colombia has ordered the Russian government to pay $50,000 each day
to plaintiff AgudasChasideiChabad of the United States ("Chabad") for
refusing to comply with a previous court order to return Jewish religious
books, artifacts, and other materials seized in the early twentieth century in Russia.
Chabad sued the Russian government in
2004 under the Foreign Sovereign Immunities Act ("FSIA"), seeking
return of the materials. After the Russian government lost on jurisdictional
arguments, it informed the court that it would no longer be participating in
the case as it believed the court lacked "authority to adjudicate rights
in property that in most cases always has been located in the Russian
Federation . . . ." In 2010, the court entered a default judgment in favor
of Chabad and ordered the Russian government to "surrender to the United
States Embassy in Moscow or to the duly appointed representatives of . . .
Chabad . . . the complete collection." When the Russian government failed
to comply, Chabad moved for civil contempt sanctions, seeking "the entry
of a monetary penalty for every day that the defendants continue to disobey
this Court's Order." Before ordering the sanctions, the court solicited
U.S. government comment because of "the serious impact such an order could
have on the foreign policy interests of the United States."
The U.S. government, like the Russian
government, objected to the "requested sanctions on both legal and
pragmatic grounds." According to the U.S. government, "civil contempt
sanctions are unavailable to enforce judgments issued against foreign states
under the FSIA," and "sanctions would damage the United States'
foreign policy interests, including its diplomatic efforts to reach a
settlement with defendants on Chabad's behalf."
The
court rejected both objections and ordered the sanctions requested by Chabad.
Relying on a 2011 decision by the D.C. Court of Appeals, FG Hemisphere Associates LLC v.
Democratic Republic of the Congo, the district court concluded
that it can issue civil contempt sanctions against foreign states under the
FSIA. In FG Hemisphere,
the Court of Appeals affirmed a district court's order imposing civil contempt
sanctions against the Democratic Republic of the Congo for failing to comply
with discovery orders.
U.S. President Obama Signs Legislation Expanding Rewards
Program to Target Transnational Organized Criminals and Most Serious Human
Rights Abusers (Jan. 15, 2013)
Click here for
White House statement (approximately 1 page); click here for
legislation (approximately 4 pages)
President
Obama has signed legislation to authorize the Secretary of State to
pay rewards to combat transnational organized crime and for information
concerning foreign nationals wanted by international criminal tribunals,
including the International Criminal Court. The law will thus expand the State
Department's Rewards for Justice Program, established by the 1984 Act to Combat
International Terrorism and thus far used to fight against international
terrorism. According to a White House statement, the
legislation is a "powerful new tool . . . to help bring to justice
perpetrators of the worst crimes known to human kind. This includes individuals
such as Joseph Kony and other leaders of the Lord's Resistance Army (LRA), as
well as certain commanders of M23 and the Democratic Forces for the Liberation
of Rwanda (FDLR)."
United
States Files Dispute in the WTO Against Indonesia on Import Licensing and
Quotas (Jan. 10, 2013)
Click here for
press release (approximately 1 page); click here for
the Request for Consultation (approximately 2 pages)
On January 10, 2013, the United States
filed a request for consultations with Indonesia concerning measures imposed by
Indonesia on the importation of horticultural products, animals, and animal
products. Specifically, the Request alleges that "Indonesia subjects the
importation of horticultural products, animals and animal products into
Indonesia to non automatic import licenses and quotas, thereby restricting
imports of goods," and that "[t]hese licensing regimes have
significant trade restrictive effects on imports and are used to implement what
appear to be WTO-inconsistent measures."
Department
of Justice White Paper (Nov. 8, 2011)
Click here for
document (approximately 16 pages)
On February 4, 2013, a U.S. Department
of Justice paper prepared in late 2011 entitled "Lawfulness of a Lethal
Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of
Al-Qa'ida or An Associated Force" was made public by NBC. The White
Paper outlines the Department of Justice's analysis of "the circumstances
in which the U.S. government could use lethal force in a foreign country
outside the area of active hostilities against a U.S. citizen who is a senior
operational leader of al-Qa'ida or an associated force of al-Qa'ida - that is,
an al-Qa'ida leader actively engaged in planning operations to kill
Americans." Analyzing primarily domestic law, and to a lesser extent
international law, the paper concludes that such an operation could be lawful
if: an informed, high-level official of the U.S. government has determined that
the targeted individual poses an imminent threat of violent attack against the
United States; capture is infeasible, and the United States continues to
monitor whether capture becomes feasible; and the operation would be conducted
in a manner consistent with applicable law of war principles.
For
more information, see the related ASIL
Insight on this topic.
U.S.
Senate Fails to Ratify the Convention on the Rights of Persons with
Disabilities (Dec. 4, 2012)
On December 4, 2012, the U.S. Senate
voted against the ratification of the Convention on the Rights of Persons with
Disabilities.
The
Convention, already ratified by 126 countries, was adopted on December 13,
2006, and entered into force on May 3, 2008. According to the UN, the Convention
"is intended as a human rights instrument with an explicit, social
development dimension. It adopts a broad categorization of persons with
disabilities and reaffirms that all persons with all types of disabilities must
enjoy all human rights and fundamental freedoms."
Hamdan
v. United States (Oct. 16, 2012)
Click here for
document (approximately 37 pages)
The U.S. Court of Appeals for the
District of Columbia Circuit has
vacated the military commission conviction of Salim Ahmed Hamdan, an al Qaeda
member and Osama bin Laden's former driver, for material support of terrorism.
Hamdan
was captured in Afghanistan in 2001 and was later transferred to the U.S. Naval
Base at Guantanamo Bay, Cuba, where he was detained as an enemy combatant and
tried and convicted by a military commission for "material support for
terrorism," a war crime specified by the Military Commissions Act of 2006.
Hamdan was sentenced by the military commission to sixty-six months'
imprisonment, and then transferred in late 2008 to Yemen, where he was
eventually released. Hamdan has continued to appeal his U.S. war crimes
conviction from Yemen.
The Court of Appeals concluded that
the Military Commissions Act of 2006 does "not to authorize retroactive
prosecution of crimes that were not prohibited as war crimes triable by
military commission under U.S. law at the time the conduct occurred." In
other words, "only if the relevant statute that was on the books at the
time of his conduct . . . encompassed material support for terrorism"
could Hamdan's conviction stand.
According to the Court, when Hamdan
committed the relevant conduct from 1996 to 2001, the applicable law provided
that military commissions may try violations of the "law of war"
(i.e., the international law of war). The Court stated that when Hamdan
committed the wrongful acts, the international law of war proscribed a variety
of war crimes, but it "did not proscribe material support for terrorism as
a war crime." Because the Court read "the Military Commissions Act
not to retroactively punish new crimes, and because material support for
terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan's
conviction for material support for terrorism cannot stand." The Court
consequently ordered that Hamdan's conviction for material support for
terrorism be vacated.
Habyarimana et al. v. Kagame (Oct. 10, 2012)
Click here for
document (approximately 6 pages)
The U.S. Court of Appeals for the
Tenth Circuit has
dismissed the claims filed by the widows of the former presidents of Rwanda and
Burundi, seeking to hold current Rwandan President Kagame liable under, inter alia, the Alien Tort
Claims Act for their husbands' deaths. Affirming the District Court, the Appeals
Court concluded that the request by the U.S. government to recognize President
Kagame's immunity from suit as sitting head-of-state was decisive: "We
must accept the United States' suggestion that a foreign head of state is
immune from suit—even for acts committed prior to assuming office—'as a
conclusive determination by the political arm of the Government that the
continued [exercise of jurisdiction] interferes with the proper conduct of our
foreign relations.'"
The plaintiffs' husbands were killed
when two surface-to-air missiles brought down their aircraft. The plaintiffs
allege that the final order to shoot down the plane was given by now President
Kagame. After the plaintiffs filed suit in Oklahoma federal court, the U.S.
government submitted, at the request of the Rwandan government, a
"suggestion of immunity" on behalf of President Kagame. In its
submission, the U.S. government emphasized that "[t]he United States has
an interest in this action because the . . . Defendant, President Kagame, is
the sitting head of state of a foreign state, thus raising the question of
President Kagame's immunity from the court's jurisdiction while in
office." In its submission, the U.S. government also noted that "[t]he
interest of the United States in this matter arises from a determination by the
Executive Branch of the Government of the United States, in consideration of
relevant principles of customary international law, and in the implementation
of its foreign policy and in the conduct of its international relations, to
recognize President Kagame's immunity from this suit while in office."
The Court of Appeals agreed with the
District Court that '"[f]or more than 160 years American courts have
consistently applied the doctrine of sovereign immunity when requested to do so
by the executive branch. Moreover, they have done so with no further review of
the executive's determination.'"
Gutierrez
v. State of Nevada (Sept. 19, 2012)
Click here for
document (approximately 14 pages)
The
Supreme Court of the State of Nevada has ruled in Gutierrez v. State of Nevada that Carlos Gutierrez, a Mexican
national sentenced to death for the killing of his three-year-old stepdaughter,
is entitled to an evidentiary hearing to determine whether he suffered actual
prejudice due to the lack of consular assistance during his sentencing hearing.
The Court specifically referred to the 2004 decision of the International Court
of Justice ("ICJ"), Avena
and Other Mexican Nationals, wherein the ICJ found that the United States
violated Article 36 of the 1963 Vienna Convention on Consular Relations when it
failed to notify fifty-one Mexican nationals on death row, one of whom was
Gutierrez, of their consular notification and access rights. While the U.S.
Supreme Court subsequently held in Medellin
v. Texas that neither Avena nor the accompanying President's
Memorandum purporting to implement Avena "constituted directly enforceable
federal law," the Supreme Court of Nevada ruled that in cases where actual
prejudice can be shown, state procedural default rules "may yield" to Avena.
According to the Supreme Court of
Nevada, "[u]nlike Medellin and Leal Garcia but like Torres, Gutierrez
arguably suffered actual prejudice due to the lack of consular
assistance." Furthermore, the Court noted that "[i]t is apparent that
Gutierrez needed help navigating the American criminal system. At the time of
his arrest, Gutierrez was 26 years old, had the Mexican equivalent of a
sixth-grade education, and spoke little English." The Court concluded that
"[r]easonable minds can differ on whether these errors were prejudicial
and that is precisely the reason an evidentiary hearing is necessary."
Memorandum
of Understanding Between the Government of the Russian Federation and the
Government of the United States of America on Cooperation in Antarctica (Sept.
8, 2012)
Click here for document (approximately 1 page); click here for U.S. Department of State Fact
Sheet (approximately 1 page)
The United States and Russia have
signed a Memorandum of Understanding for Cooperation in Antarctica
("MOU") and issued Joint Statements on Pursuing a Transboundary Area
of Shared Beringian Heritage and on Enhancing Interregional Cooperation.
According
to the accompanying U.S. Department of State Fact Sheet, the MOU
will "[s]trengthen cooperation and significantly improve coordination of
bilateral policies, science, logistics, search and rescue, training, and public
outreach in Antarctica" and "reinforce cooperative activities already
taking place."
The
parties, guided by the Antarctic Treaty of December 1, 1959, have agreed
"to consult regularly through their respective Foreign Ministries on
issues of common interest concerning implementation of the Treaty and other
elements of the Antarctic Treaty system," "to cooperate in the
organization and conduct of joint inspections in the Treaty area under Article
VII of the Treaty and Article 14 of the Protocol on Environmental Protection to
the Antarctic Treaty," "to encourage organization and implementation
of joint projects and programs for research and exploration of
Antarctica," "to promote collaboration in scientific research and
logistical and support activities between their respective national Antarctic
program managers," and "to facilitate scientific cooperation in the
Treaty area and the exchange of associated data in important areas of
scientific research."
The MOU is a non-binding instrument
that "does not constitute an international agreement or give rise to any
rights and obligations for the Parties under international law.
International
Judicial Monitor