NEWS

News Archive

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St. Martins Press to publish new Saddam Hussein book by Professor Michael Scharf
Professor Michael Scharf has signed a contract with St. Martins Press, one of the world's leading publishing houses, to publish his new book, "Enemy of the State," in the fall of 2008.

The book, which was co-written by Vanderbilt Law Professor Michael Newton, recounts the story behind the trial of Saddam Hussein and the effort to bring the rule of law to post-invasion Iraq. Scharf and Newton helped draft the Iraqi High Tribunal Statute and trained the judges who presided over the Saddam trial.

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Professor Sharona Hoffman appointed to Institute of Medicine research committee
Sharona Hoffman, Professor of Law and Bioethics at Case Western Reserve University, has been appointed by the Institute of Medicine of the National Academies to the Committee on Research Priorities in Emergency Preparedness and Response for the Public Health Systems.

As part of the 16-member ad hoc committee, which was formed in response to a request from the Centers for Disease Control and Prevention’s (CDC) Coordinating Office for Terrorism Preparedness and Emergency Response, Professor Hoffman will be responsible for helping identify short-term (3-5 year) research priorities to improve public health systems’ emergency preparedness. The research is to be conducted primarily by schools of public health.

The committee met in Washington D.C. December 18-21. Its findings will be used by the Coordinating Office for Terrorism Preparedness and Emergency Response to develop research funding announcements and requests for applications that will be issued and filled during the 2008 fiscal year.

Professor Hoffman, who is also Senior Associate Dean for Academic Affairs and Co-Director of the Law-Medicine Center at Case Western Reserve University School of Law, has taught civil procedure, employment discrimination, and various health law courses. She has published articles on employment discrimination, health insurance, disability law, biomedical research, the concept of race and its use in law and medicine, and health information technology. Professor Hoffman is a frequent speaker on health law and civil rights issues and has been widely quoted in the media, including the L.A. Times, USA Today, and the New York Times.

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Professor Adler among most cited professors in environmental law
Professor Jonathan H. Adler is listed among the most cited law professors in environmental law in a new study conducted by University of Texas law professor Brian Leiter. Professor Leiter’s study identifies the 10 or 20 most cited law professors by specialty for the period 2000-2007, along with runners up. Professor Adler is listed as one of the runners up to the 10 most cited law professors in environmental law.

Professor Adler is the only professor of the most cited in environmental law under the age of 40.

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Professor Adler debates con­sti­tu­tional right to unapproved drugs
In May 2006, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that terminally ill patients posses a fundamental right to access experimental drugs that have not been fully approved by the Food and Drug Administration. However, in August of this year, a divided appeals court sitting en banc reversed that decision in Abigail Alliance v. von Eschenbach, prompting a petition for certiorari to the Supreme Court.

Last week, Professor Jonathan H. Adler participated in an on-line debate on Abigail Alliance and whether the terminally ill have a fundamental constitutional right to access potentially life saving drugs as part of the Federalist Society’s “Originally Speaking” debate series. Other participants included Roger Pilon of the Cato Institute, Ed Whelan of the Ethics and Public Policy Center, and Curt Levey of the Committee for Justice.

Read the debate.

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Law professors say "health courts" offer big financial burdens and loss of patient rights

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Professor Michael Scharf receives 2007 Article of the Year Award
The International Association of Penal Law announced that Professor Michael Scharf's article, "From the eXile Files: An Essay on Trading Justice for Peace," published in 63 Washington and Lee Law Review 339-376 (2006), was awarded the International Association of Penal Law (American National Section)'s 2007 Article of the Year Award for "scholarly contribution to the field."

This is only the latest honor for Professor Scharf, who's work in the field of international law has won global acclaim. In 2005, the Public International Law and Policy Group and its co-founders, Professor Scharf and Paul Williams, were nominated by eight governments and an international criminal tribunal for the Nobel Peace Prize for "significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and non-state entities involved in peace negotiation and in bringing war criminals to justice."

Founded in 1924, the International Association of Penal Law is a professional organization of 3,000 academicians and practitioners from 130 countries in the field of international and comparative criminal law and procedure. Read more information here.

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President Barbara R. Snyder elected to top legal institute

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Fourth edition of Profes­sor Paul Giannelli's influential book Scientific Evidence released
Lexis Publishing Company recently released the textbook, co-authored with Edward Imwinkelried of University of California at Davis. Courts and commentators have cited the book hundreds of times, including the U.S. Supreme Court in United States v. Shefflin, 523 U.S. 303 (1998) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Read more about Professor Giannelli.

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Law-Medicine Center Director Maxwell Mehlman and workshop colleagues develop science policy on human enhancement
Sponsored by the American Association for the Advancement of Science (AAAS),the Program on Scientific Freedom, Responsibility and Lawof which Professor Maxwell Mehlman was a part produced a report entitled "Good, Better, Best: The Human Quest for Enhancement." The AAAS invited Professor Mehlman, director of Law-Medicine Center, to participate in a June 2006 science policy workshop on human enhancement. AAAS has now posted its report on the workshop.

The workshop includedscientists, ethicists, industry representatives, legal scholars, and policy analysts. "The project was intended to generate insights, perspective, and to contribute to more informed public deliberations on the technical, ethical, and public policy issues surrounding human enhancement.Some of the issues highlighted at the AAAS workshop related to individual choice, allocation of resources, fairness, justice, dignity, and the quality of life, all of which will undoubtedly shape professional and public discourse on human enhancement and options for public policy. One specific outcome of the project was a list of recommendations from meeting participants of next steps AAAS might consider in its role as an association committed to "advancing science, serving society.” The Summary Report of the meeting, entitled "Good, Better, Best: The Human Quest for Enhancement," concludes with several of those recommendations, and we plan to continue our involvement in these important issues."

Read more and access the report .

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Voice of America radio news profiles the work of War Crimes Crimes Research Office
On July 12, 2007, Voice of America aired a story about the work of the Case Western Reserve University School of Law professors and students working with the Cox Center War Crimes Research Office. Led by Professor Michael Scharf, the War Crimes Research Office is assisting with the prosecution of Charles Taylor and other cases before the Special Court for Sierra Leone in Freetown, the International Criminal Tribunal for Rwanda in Arusha, the International Criminal Court in The Hague, and the new Cambodia Genocide Tribunal in Phnom Penh.

See the news profile here.

Listen to the Voice of America audio archive.

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Professor Jonathan Adler discusses 06-07 Supreme Court term on PBS Newshour
On June 29, Professor Adler joined another constitutional law expert, Professor Goodwin Liu from the University of California, Berkeley, Boalt Hall Law School, to discuss the Supreme Court term that just ended under Chief Justice John Roberts.

Video and a transcript from the show are available through the PBS website.

Read Professor Adler's July 5, 2007 article in the National Review Online: "How Conservative Is this Court?"

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Law professor's scholarship cited by international tribunal

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Professor Louise McKinney receives second Fulbright Award
Louise McKinney, professor of law at Case Western Reserve University School of Law, was recently awarded a Fulbright Scholar grant. As a Fulbright Scholar, Professor McKinney will teach in the clinical program at the University of Botswana's Law Department in Gaborone, Botswana, in southern Africa. The 10-month award is for the 2007-2008 academic year and will begin in August 2007.

Professor McKinney is one of approximately 800 U.S. faculty and professionals who will travel abroad through the Fulbright Scholar Program. Established in 1946 under legislation introduced by the late Senator J. William Fulbright of Arkansas, the Program's purpose is to build mutual understanding between the people of the United States and the world.

In Botswana, Professor McKinney will be working with the law faculty to expand and enhance their university's clinical legal education program. In addition, she hopes to be able to work with leaders in the country to develop a sustainable program for providing more free legal services for people who cannot afford to pay for them.

This is Professor McKinney's second Fulbright award. Her first was a grant for teaching 11 months in Nairobi, Kenya, in 1998-1999. There, she worked with the law faculty at the University of Nairobi, inserting clinical teaching and experiences into the curriculum and revising the curriculum to include a Legal Aid Clinic for the first time. Additionally, this will be Professor McKinney's second time living and working in Botswana. In 1988-1989, she worked with the clinical legal education program as it was getting started, under a USAID grant.

Professor McKinney teaches in the Milton A. Kramer Law Clinic Center at the School of Law, including an experiential Health Law Clinic. Other courses she teaches include Poverty, Social Inequality, and the Law and Focused Problem Solving in the law school's CaseArc skills program. Before beginning full-time legal teaching, Professor McKinney was an attorney for ten years with the Legal Aid Society of Cleveland, most of them in its Law Reform unit representing clients in issues related to health and disability law. She joined the Case law faculty in 1989.

The Fulbright Program, the United State's flagship international educational exchange program, is sponsored by the United States Department of State, Bureau of Educational and Cultural Affairs. Since its inception, the Fulbright Program has exchanged approximately 273,500 people – 102,900 Americans who have studied, taught or researched abroad and 170,600 students, scholars and teachers from other countries who have engaged in similar activities in the United States. The Program operates in 150 countries worldwide.

Recipients of Fulbright awards are selected on the basis of academic achievement, as well as demonstrated leadership potential in their fields. Among the thousands of prominent Fulbright alumni are: Craig Barrett, Chairman of the Board of Intel Corporation; Mohamed Benaissa, Minister of Foreign Affairs, Morocco, Raoul Cantero, Justice, Florida Supreme Court; Luis Ernesto Derbez, Minister of Foreign Affairs, Mexico; Renee Fleming, soprano; Gish Jen, Writer; Dolores Kendrick, Poet Laureate of the District of Columbia; Daniel Libeskind, Architect; Aneesh Raman, CNN Baghdad correspondent; Robert Shaye, Co-Chairman and Co-CEO, New Line Cinema; Ruth Simmons, President, Brown University; Javier Solana, Foreign Policy Chief, European Union; and Muhammed Yunus, Managing Director and Founder of the Grameen Bank.

Professor McKinney is the author of the following article: "Introduction: Are the Walls Tumbling Down? Hardly. Are the Sands Shifting? Surely," 12 Health Matrix: Journal of Law-Medicine 1 (Winter 2002).

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Award honors Professor Jacqueline Lipton among women scholars and researchers
The Mather Spotlight Series Prize for Women's Scholarship honors women faculty for their excellence in research and scholarship. An awards reception this spring honored eight women from the university community. This year's recipients as selected by their school or college are:

• Diana Bilimoria, Weatherhead School of Management
• Eva Kahana, College of Arts and Sciences
• Lenore A. Kola, Mandel School of Applied Social Sciences
• Jacqueline Lipton, School of Law
• Diana Lynn Morris, Frances Payne Bolton School of Nursing
• Meral Ozsoyoglu, Case School of Engineering
• Marsha A. Pyle, School of Dental Medicine
• Susan Redline, School of Medicine

An endowment from the Flora Stone Mather Alumnae Association supports this annual program through the Flora Stone Mather Center for Women. The endowment, established in 1989, awarded the first Spotlight Series Prize in 2005. Each winner received a certificate and modest stipend as a way to honor their accomplishments in their respective fields.

Professor Lipton is the co-director of the Center for Law Technology and the Arts, and associate director of the Frederick K. Cox International Law Center.

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On global warming: Professor Jonathan Adler testifies before U.S. Senate Committee on Environment and Public Works
Professor Adler was among witnesses that testified before a full committee hearing entitled "Examining the Case for the California Waiver" on May 22. View press release.

The hearing explored California's request for a federal waiver from the Environmental Protection Agency (EPA) so that it can regulate greenhouse gas emissions on new vehicles. The EPA has resisted making a decision on the waiver ever since the state requested the waiver in December 2005.

The hearing witnesses were the Honorable Edmund G. Brown Jr., Attorney General, State of California; the Honorable Alexander B. Grannis, Commissioner, New York State Department of Environmental Conservation; and Professor Jonathan H. Adler, Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Read Professor Adler's commentary about the hearing on the blog The Volokh Conspiracy.

Read Professor Adler's commentary (PDF)

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Has the Supreme Court Seen Green? The Rami­fi­ca­tions of Mass. v. EPA
Professor Jonathan Adler discusses the Supreme Court’s ground­breaking decision during a con­fer­ence at the American Enterprise Institute (AEI) that was broadcast live on C-Span 3. The conference took place Monday, May 7, 2007 at AEI's headquarters in Wash­ing­ton, D.C. Professor Adler was part of a panel that included Jeffrey Bossert Clark, Kirkland & Ellis, LLP and George Mason University Law School, Lisa Heinzerling, Georgetown University Law Center, Mark Moller, Cato Institute, David Schoenbrod, New York Law School and Cato Institute, and Joel Schwartz, AEI.

More information about the event, including audio and video archives, is available here.

Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

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"Rough Justice: Behind the Scenes with the American Advisers to the Iraq v. Saddam Hussein Court"
Professor Michael Scharf, director of the Frederick K. Cox International Law Center, is extensively quoted in the definitive investigative report on the Saddam Hussein trial, "Rough Justice: Behind the Scenes with the American Advisers to the Iraq v. Saddam Hussein Court" by John Gibeaut. Professor Scharf served as a member of the international team of experts that trained the judges and prosecutors of the Iraqi Special Tribunal.

The article appears in the April 2007 issue of the ABA Journal and is available online.

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Prof. Juliet P. Kostritsky to present paper at annual meeting of the American Law and Economics Association
Prof. Juliet P. Kostritsky's paper "Plain Meaning vs. Broad Interpretation: How the Risk of Opportunism Defeats a Unitary Default Rule for Interpretation" has been selected for presentation at the annual meeting of the American Law and Economics Association that will be held Saturday and Sunday, May 5-6, 2007 at the Harvard Law School. She will speak on a panel of Contracts and Commercial Law Scholars on Sunday, May 6, 2007 at 9:00 a.m.

View the complete program of ALEA in PDF format.

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Professor presents at coun­ter­ter­rorism sem­i­nar organ­ized by Neth­er­lands Min­istry of Foreign Affairs
Professor Gregory McNeal, assistant director of the Institute for Global Security Law and Policy was among a handful of presenters at an expert panel sponsored by the Netherlands Ministry of Foreign Affairs and The Grotius Centre for International Legal Studies in the Netherlands. The international panel included one American other than Professor McNeal and dealt with critical issues related to counterterrorism strategies, human rights, and international law. The results of the session will be included in a paper to be used by the Netherlands Ministry of Foreign Affairs in decisions about their counterterrorism policies.

Professor McNeal supervises the Institute for Global Security Law a Policy’s innovative comparative counterterrorism law program funded by a U.S. Department of Justice grant. The program is designed to enhance cooperation between officials in the Department of Justice Counterterrorism Section and their European counterparts. Professor McNeal also co-teaches the law school’s Counterterrorism Prosecution course in which students provide legal research support to the Department of Defense Office of Military Commissions regarding issues related to the Guantanamo detainees.

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Professor Michael Scharf to co-chair 2007 Joint Hague Conference
Case Western Reserve University School of Law Professor Michael Scharf, director of the Frederick K. Cox International Law Center, was selected to co-chair the American Society of International Law-Dutch Society of International Law-TMC Asser Institute's "2007 Joint Hague Conference. This prestigious international conference, titled "Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference," will be held June 28-30 in The Hague.
Read more information

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Cleveland Bar Asso­ci­a­tion event on rep­re­sen­ting LGBT families fea­tures keynote address by Dean Simson
"Representing LGBT Families in a Changing Environment" is presented by the Diversity Action Committee of the Cleveland Bar Association, and coordinated by Case Western Reserve University School of Law's Lambda Law Students Association. It will take place on April 10, 2007 from noon to 4:30 p.m. at the Cleveland Bar Association, 1301 East 9th Street, Galleria, Second Level, Cleveland, OH 44114. 3.5 hours of CLE are available.

Gary J. Simson, dean of the law school, will deliver the keynote address, "Beyond Interstate Recognition in the Same-Sex Marriage Debate" at 12:30 p.m. Joan M. Burda, author of Estate Planning for Same-Sex Couples and director of the Cleveland Homeless Legal Assistance Program will talk about "Representing the LGBT Family." A panel discussion featuring representatives from law firms, the ACLU and the Legal Aid Society will conclude the program.

For more details, including registration information and an agenda

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Law professor receives Ohio Magazine's "Excellence in Education Award"

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Law professors create groundbreaking international law blog
Case Western Reserve University School of Law Professors Michael Scharf, Amos Guiora and Gregory McNeal among founders of the AIDP Blog, the official blog of the American National Section of the AIDP (L’Association Internationale de Droit Penal / The International Association of Penal Law). The AIDP Blog will provide a forum for expert debate and thought-provoking commentary on contemporary issues of comparative criminal justice, international criminal law, international humanitarian law, international criminal tribunals, human rights and counterterrorism law & policy.

Founded in Paris in 1924, the AIDP is the oldest association of specialists in penal law in the world and one of the oldest scientific associations. Since 1950, the Association has been a U.N. accredited NGO. It is also a member of the United Nations alliance of NGOs on Crime Prevention and Criminal Justice in New York and Vienna, which have frequently been chaired by an Association’s representative. It also cooperates with the United Nations Secretariat, ECOSOC, the Crime Prevention and Criminal Justice Division (as it was called until 1998), the Division of Narcotic Drugs, the Center for Human Rights and other specialized United Nations institutes, such as UNSDRI (Rome), HEUNI (Helsinki), UNAFEI (Tokyo), ILANUD (San Jose), ISPAC (Milan), ASTC (Riyadh), UNAFRI (Kampala), ISISC (Siracusa). The American National Section is a subsidiary of the 3,000-member international Association. The Association, by its manifold activities, meetings, and publications, has played a significant role in the promulgation of the Torture Convention, the Rome Statute of the International Criminal Court, and other important international instruments.

Among the experts bloggers are the former U.S. Ambassador at Large for War Crimes Issues, a former Under Secretary General of the United Nations and Chief Prosecutor for the Special Court for Sierra Leone, a Nobel Peace Prize nominee, former U.S Department of State legal advisors, participants from the negotiation of the ICC treaty, defense attorneys from international tribunals, and former military officers with operational and advisory experience in counterterrorism and post-conflict states. All of the experts are accomplished academics with multiple books and scholarly articles, many cited by the international criminal tribunals, the Supreme Court of the United States, the Supreme Court of Israel, and other high Courts. The experts appear frequently in the media, and you can follow their appearances as they occur under the Expert Appearances section.

The bloggers of the AIDP Blog:

Michael Scharf, Deputy Secretary-General of the AIDP and President of the AIDP American National Section

Mark Drumbl, Vice President of the AIDP American National Section

Christopher Blakesley, Vice President of the AIDP American National Section

Michael Kelly, Director of Studies, AIDP American National Section

Gregory McNeal, Director of Studies, AIDP American National Section

Dorean Koenig, Secretary, AIDP American National Section

David Crane, AIDP American National Section Executive Council member

Amos Guiora, AIDP American National Section Executive Council member

Linda Malone, AIDP American National Section Executive Council member

Michael Newton, AIDP American National Section Executive Council member

Jordan Paust, AIDP American National Section Executive Council member

David Scheffer, AIDP American National Section Executive Council member

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Professor's review of The Republican War on Science remains one of 10 most downloaded articles on research website
"Don't Politicize Science (Unless You're on My Side)," Professor Jonathan Adler's review of C. Mooney's book, was posted Jan. 25, 2007 on the Social Science Research Network website, and has since been on the "Top Ten" download list from all SSRN journals.

Professor Adler is director of the Center for Business Law and Regulation.

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Professor Paul Giannelli publishes new edition of his casebook on evidence

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Three law professors invited to participate in reexamination of the rules of armed conflict
Participation by Professors Michael Scharf, Amos Guiora and Gregory McNeal will contribute to the work of a team of international experts recommending updates to the rules of armed conflict to reflect the challenges of terrorism as the 100 year anniversary of The Hague Rules of 1907 approaches.

The goals of the research are to draft a set of updates to the rules of armed conflict, to suggest policies that can inform successful strategies and tactics for combating terrorism, and to consider the human rights dimensions of the purposeful use of non-combatants as a shield and civilian areas as safe sanctuary. The recommended updates will serve as a basis for nations to bring about needed changes in the laws of war.

Recent conflicts underscore the continuing shortcomings of international law and policy in responding to asymmetric warfare mounted by non-state terrorist groups in the 21st century. Neither The Hague Rules, the customary law of war, nor the post-1949 law of armed conflict and accompanying international humanitarian law, account for non-state groups waging prolonged campaigns of terrorism - and, in some cases, more conventional military attacks - that leave the defending state with little choice but to respond in ways that inflict heavy civilian casualties.

As the 100 year anniversary of The Hague Rules of 1907 approaches, three Case Western Reserve University School of Law professors have been asked to participate in a fundamental re-examination of the policies and laws for the conduct of armed conflict. The invited professors are Michael Scharf, director of the Frederick K. Cox International Law Center, Amos Guiora, director of the Institute for Global Security Law and Policy, and Gregory McNeal, assistant director of the Institute for Global Security Law and Policy. The program is sponsored by Syracuse University’s Institute for National Security and Counter Terrorism, and The Institute for Counter Terrorism (ICT) at the Interdisciplinary Center (IDC) in Herzliya, Israel.

The invitation recognizes the strength of the global legal curriculum at the School of Law and the expertise of the professors who will be asked to serve on a team of international experts reviewing and discussing case studies and lessons learned developed by teams of military officers and military lawyers from Israel and the United States. Following that review, the professors will participate in a working session in Israel this summer to develop proposals for reform or new protocols to the laws of war. he effort will culminate in a conference in Washington D.C., where the Case team will participate in paper presentations and will engage in discussion with other experts regarding the future of the rules and policies for armed conflict. Following work will include the preparation of a book and an outreach effort to engage nations and other key bodies about the work of the group and their recommendations.

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Oxford University Press will publish Prof. Amos Guiora's book on the treatment of detainees
The book, Learn from History: Lessons for Extending Constitutional Protections to an Unprotected Class - The Limits of Coercive Inter­rogation, will contribute to the ongoing debate about establishing necessary standards and procedures for detainees in today's "war on terrorism."

In the aftermath of 9/11 most academic discourse pertaining to detainee treatment has focused on the permissibility of torture. Professor Guiora's book will analyze the applicability of imposing certain constitutionally based criminal law rights onto detainees, specifically looking at the interrogation context through the lens of threats and cumulative mistreatment. Based on analysis and application of the hybrid paradigm, the focus of this book will be on 1) what constitutional rights should be extended to detainee interrogations, and 2) how such rights can be granted based in part on an examination of the lessons of history in determining what rights should be extended to individuals currently unprotected.

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Institute for Global Security Law & Policy Director Amos Guiora quoted in The Plain Dealer Sunday

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Should the Supreme Court force the EPA to restrict greenhouse gases? According to professor, no
Professor Jonathan Adler's op-ed appeared in the Columbus Dispatch and the San Diego Tribune. Professor Adler explains why the Supreme Court should reject the claim that the Clean Air Act requires the regulation of carbon dioxide and other greenhouse gases. Read full op-ed.

Professor Adler was also recently featured in various media outlets providing commentary on the Supreme Court's oral argument on global warming in Massachusetts v. EPA. He was invited to submit the "opposing view" column in USA Today. He was a panelist in discussion on the topic at the American Enterprise Institute which was later broadcast on C-Span. Professor Adler also co-authored an amicus brief on the subject, and has been blogging extensively on the case at the Volokh Conspiracy, the weblog that won first place in the "Best Law Blog" category in 2006.

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Prof. Michael Scharf to speak at City Club Friday Forum Jan. 12

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Memorial service to honor longtime law professor Peter D. Junger
The service will be Thursday, January 11 at 7:30 p.m. in Room 159 of Gund Hall. Professor Emeritus Peter D. Junger passed away in November. He taught at the law school for 31 years.

Professor Junger grew up in Wyoming. He received his A.B in 1955 and his LL.B. in 1958, both from Harvard. He practiced as a real estate lawyer in the New York firm, Patterson Belknap Webb, from 1961-70. He began teaching as an Associate Professor at Case Western Reserve University School of Law in 1970 and served until 2001. He became Professor Emeritus in 2002.

Although his field was property law, Professor Junger was deeply involved in the computer revolution. He was active in an early artificial intelligence group on the campus and worked on issues relating to computer privacy and data encryption. He filed a lawsuit challenging a federal regulation that barred the export of data encryption software. Professor Junger argued that the regulation infringed his First Amendment rights in that it prevented him from showing encryption software to foreign nationals who were in his class on computers and law. The case was dismissed by the trial court but the 6th Circuit Court of Appeals reversed that decision and upheld Professor Junger's claim that computer source code was expression protected by the First Amendment. Just before he died, Professor Junger completed an article arguing against the patentability of software.

All of Professor Junger's students, colleagues, and friends are invited to attend the memorial service. Those who would like to speak at the service or to submit written anecdotes or reminiscences about Professor Junger should contact Professor Wilbur Leatherberry (368-3585) or Professor Jonathan Entin (368-3321).

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Conversation with Supreme Court Justice Antonin Scalia will be moderated by deans of Case Western Reserve University School of Law and Cleveland-Marshall College of Law
The Cleveland Clinic's Ideas for Tomorrow speaker series will present a conversation with Antonin Scalia, Associate Justice of the Supreme Court of the United States. The program will begin at 5 p.m., January 10, at the InterContinental Hotel and MBNA Conference Center, 9801 Carnegie Ave. Gary Simson, dean of the Case Western Reserve University School of Law and Geoffrey Mearns, dean of the Cleveland-Marshall College of Law at Cleveland State University, will moderate the conversation, followed by a question and answer session.

Interested persons must register by January 8. For more information call 216-932-3448. The event is sponsored by the Cleveland Clinic, Case Western Reserve University, Cleveland State University, and the Cleveland and Cuyahoga County bar associations.

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Professor interviewed on NPR's All Things Considered about Saddam Hussein's rushed trial and execution
Critics have questioned the validity of the proceedings that led to Saddam Hussein's execution. Professor Michael Scharf, co-author of the book Saddam on Trial: Understanding and Debating the Iraqi High Tribunal was interviewed by the National Public Radio show All Things Considered on December 30, 2006.

Access an audio archive.

Professor Scharf, one of the experts to train the judges and prosecutors of the Iraqi Special Tribunal, has been frequently sought for commentary on the trial's proceedings. Recently, he was quoted in:
The Christian Science Monitor, January 2, 2007
The Chicago Tribune, December 31, 2006
The Plain Dealer, December 30, 2006
The Toronto Star, December 30, 2006
The New York Post, December 27, 2006.

He has also recently appeared on the following TV and radio news broadcasts:

• Court TV, January 2, 2007 (transcript)
• National Public Radio, "Weekend All Things Considered," December 30, 2006
• Fox News, December 30, 2006
• CNN News, December 30, 2006
• CBC Radio, December 30, 2006
• ABC News "Nightline," December 29, 2006
• CNN, "Anderson Cooper 360 Degrees," December 29, 2006
• FOX News Network, "Hannity and Colmes," December 29, 2006
• Bloomberg TV, December 29, 2006
• Cleveland Channel 3, 6:00 pm News, December 29, 2006
• Cleveland Channel 5, 11:00 pm News, December 29, 2006
• CNN News, December 26, 2006

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Guiora Op-Ed in Baltimore Sun online

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Professors of law and engineering to publish joint article on computer security and privacy rights
Professor of law and professor of engineering to publish joint article on computer security and privacy rights Law school Associate Dean Sharona Hoffman and Andy Podgurski, Associate Professor at the School of Engineering, will publish "In Sickness, Health, and Cyberspace: Protecting the Security of Electronic Private Health Information" in the Boston College Law Review in March 2007. The husband and wife team presented their paper at a conference in Edinburgh, Scotland, in October (the IV Computer Law World Conference).

Abstract of the article:

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Israel Supreme Court cites Prof. Amos Guiora's law journal article
On December 13, 2006 The Israel Supreme Court (769/02) sitting at The High Court of Justice cited Professor Amos Guiora's article, "Targeted Killing as Active Self-Defense," which was published in the Case Western Reserve University School of Law, Journal of International Law, Volume 36, Numbers 2 and 3 (36 Case W. Res. J. Int’l L. 319 (2004)) in its ruling that the Israel Defense Forces policy of targeted killings of terrorists does not categorically violate international law, and the legality of each targeted killing must be evaluated on an individual basis. Prof. Guiora is director of the Institute for Global Security Law and Policy at Case Western Reserve University School of Law.

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Institute for Global Security Law and Policy Director, Prof. Amos Guiora, has an editorial titled, "Defining the Mission," published in Arizona's East Valley Tribune

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Opposing view: It's not up to the EPA
Professor Jonathan Adler argues that if global warming requires regulation, that is a decision for Congress to make in a USA Today column on Massachusetts v. EPA, the global warming case argued at the Supreme Court. Professor Adler gave a talk on the case last week that was broadcast on C-Span (watch video here). He also co-authored an amicus brief on the subject, and has been blogging extensively on the case at the Volokh Conspiracy. The Los Angeles Daily Journal has asked him to write an article on the case as well.

Professor Adler teaches a course in environmental law at Case Western Reserve University School of Law. He is the co-director of the Center for Business Law and Regulation.

Excerpt from Professor Adler's USA Today column:

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Professor Calvin Sharpe delivered the James Mullenbach Endowed Lecture at Oberlin College

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Professor George Dent spoke at Rutgers Law Review Symposium
Professor Dent, Schott-van den Eynden Professor of Business Organizations Law at Case Western Reserve University School of Law, spoke at a Rutgers Law Review Symposium on November 10, "Same-Sex Couples & 'The Exclusive Commitment:' Untangling the Issues & Consequences." Held at Rutgers' Newark campus, Prof. Dent was a speaker on the panel, "Debating the Arguments--NJ's Lewis v. Harris Decision." Professor Dent's article on the topic will be published in the Rutgers Law Review Symposium issue.

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Law Professor Michael Scharf Provides National Commentary on Saddam Trial Verdict
In the last week, Professor Scharf was quoted in the New York Times, Washington Post, Reuters, and USA Today, and appeared on two dozen national television and radio news shows (including NBC's "The Today Show," CNN, and Fox News) to discuss the Saddam Hussein Trial verdict. Listen to his November 6 interview on National Public Radio's "Morning Edition".

Professor Scharf and Greg McNeal (Assistant Director of the Law School's Institute for Global Security Law and Policy) are the co-authors of Saddam on Trial, the first published book on the Saddam Trial. They will be doing a book talk and signing at Joseph Beth book store at Legacy Village on the evening of November 29. The event is tentatively scheduled to be broadcast on C-SPAN's Book TV.

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Briefing by law professor and student to the Congressional Human Rights Caucus to be included in Congressional Record
Professor William Carter and Lydia Bakaki, a current LL.M. student from Uganda, gave a briefing at the Rayburn House Office Building to the Congressional Human Rights Caucus regarding the international human rights standards governing women's human rights, property rights, and socioeconomic status in sub-Saharan Africa. The Caucus is co-chaired by Senators Brownback and Harkin and Representatives Lantos and Wolf. The briefing was chaired by Congressman Kucinich. Among other attendees were Annette Lantos, Executive Director of the Congressional Human Rights Caucus, Leticia Diaz, Senior Policy Advisor for Human Rights and International Affairs for the National Association of Social Workers (and former Deputy Director for USAID in Uganda), Christina Hartman, Program Officer for Freedom House's African Institute for Democracy and Rule of Law, and Elizabeth Kucinich. At Congressman Kucinich's request, a written summary of Professor Carter's and Ms. Bakaki's remarks will be prepared for inclusion in the Congressional Record. (Sept. 28, 2006).

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Faculty Workshop Series on Legal Theory
The Spring 2007 workshop series is entitled: "Legal Theory: Justificational Analysis in Law." Dean Gary J. Simson appointed Professor Juliet Kostritsky to organize and develop the series. Each semester, 6-7 workshops will be offered at which a faculty member from another university will present their work and respond to questions and comments from Case law school faculty. Professor Kostritsky — the John Homer Kapp Professor of Law and a nationally recognized scholar in contract law and theory — identifies and invites scholars elsewhere whose work would be of particular interest for the aspects of legal theory that are this semester's focus.

The series will host renowned scholars in their fields who will address some of the most basic issues confronting judges and legal scholars, legislators, administrative agencies, and advocates. These scholars have developed and will draw on the central analytical models from various disciplines, including economics (various forms of efficiency) and moral philosophy. This semester these scholars will use their models to address the problem of how parties contract when the future is unknowable. They will explore how contracting when contingencies are unforeseeable affects the normative question of what role courts should play in enforcing contracts. The problem of contracting under uncertainty addressed by speakers in the series affect a wide range of contexts in law, including arbitration, insurance, labor and all types of agency contracts, including enterprise design and the capital markets. Scholars in the series will identify when legal intervention would be likely to increase welfare for the parties and for society and when courts should assume a less active role. Economic insights will be used to compare private with public enforcement schemes and to assess optimal remedies. Speakers in the series will use insights gained from contract theory to illuminate legal reasoning and legal precedent. For example, one speaker will address the interplay between insurance law and liability rules in a presentation entitled "Which Came First, the Liability or the Insurance?" (Professor Kenneth Abraham of the University of Virginia.) and another speaker (Professor Luca Anderlini of Georgetown University) will address "Court Intervention in Contractual Relationships" with a special focus on the problem of unforeseen contingencies.

A few of the speakers appearing include:

Professor Jody S. Kraus is the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law. His most recent publication is entitled: "A Philosophical Approach to the Economic Analysis of Contract Law" (2006 Virginia Journal). He is also the co-editor (with Steven D. Walt) of The Jurisprudential Foundations of Corporate and Commercial Law (Cambridge University Press, 2000). The topic of his workshop on February 7 will be "The Jurisprudential Origins of Contemporary Contract Theory."

Professor Avery W. Katz is the Vice Dean and Milton Handler Professor of Law at Columbia University School of Law. Professor Katz will speak on March 1, 2007, on "Interference with Contractual Relations: A Transactional Approach." or on "Optimal Contract Remedies under Private versus Public Enforcement Regimes." He is an editor of the International Review of Law and Economics. His most recent articles include "The Economics of Form and Substance in Contract Interpretation," (2004 Columbia Law Review) and "The Option Element in Contracting" (2004 Virginia Law Review).

Professor Kenneth S. Abraham will speak on Thursday March 22, 2007. Professor Abraham will address, "Which Came First, the Liability or the Insurance?" from his forthcoming book. Professor Abraham is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He has advised the American Law Institute's ongoing revision of the Restatement of Torts. His recent books include: Insurance Law and Regulation: Cases and Materials (Foundation Press, 4th ed. 2005) and The Forms and Functions of Tort Law (Foundation Press, 1997; 2d ed. 2002).

Professor Luca Anderlini will speak on March 28, 2007. Professor Anderlini is currently a Professor of Economics at Georgetown University, where he has taught since 2001. He completed his PhD in Economics in 1987 at University of Cambridge, Faculty of Economics & Politics. From 1987 to 1999, he was Lecturer of Economics, St. John's College and Faculty of Economics and Politics, University of Cambridge, and he was Professor of Economics from 1999 to 2001 in the Department of Economics at the University of Southampton. His workshop topic "Court Intervention in Contractual Relationships" will reflect on two recent papers (co-authored with Leonardo Felli and Andrew Postlewaite) titled: "Courts of Law and Unforeseen Contingencies," Journal of Law, Economics & Organization, forthcoming, 2007, and "Should Courts Always Enforce What Contracting Parties Write?" Georgetown University, mimeo, 2006.

Additional speakers will be announced as workshops become confirmed. For further information, contact Professor Juliet Kostritsky at juliet.kostristsky@case.edu.

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Professor Ann Southworth participates in the 1st Annual Conference on Empirical Legal Studies
Her paper, co-authored Jack Heinz and Anthony Paik, "Lawyers of the Right: Networks and Organization," has been accepted for publication by Law & Social Inquiry. Professor Southworth presented the paper during the conference at the University of Texas Law School in October.

Abstract
Lawyers for conservative and libertarian causes are active in organizing and mobilizing interest groups within the conservative coalition, and networks of relationships among those lawyers help to maintain and shape the coalition. Using data gathered in interviews with 72 such lawyers, the article analyzes characteristics of the lawyers and the structure of their networks. The findings suggest that the networks are divided into segments or blocks that are identified with particular constituencies, but that a distinct set of actors with an extensive range of relationships serves to bridge the constituencies. Measures of centrality and brokerage confirm the structural importance of these actors in the network, and a search of references in news media confirms their prominence or prestige. This "core" set of actors occupies the "structural hole" in the network that separates the business constituency from religious conservatives. Libertarians, located near the core of the network, also occupy an intermediate position. Causal analysis of the formation of ties within the network suggests that the Federalist Society has played an important role in bringing the lawyers together.

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First Book about Saddam Hussein Trial Now in Print
With the judgment in the Saddam Hussein trial to be issued in two weeks, on Oct. 16, 2006, Carolina Academic Press has just published Saddam on Trial: Understanding and Debating the Iraqi High Tribunal -- a timely and unique book of essays that examine over fifty issues related to this historic trial. The book was written by Case School of Law professors Michael Scharf (Director, Frederick K. Cox International Law Center) and Gregory McNeal (Assistant Director, Institute for Global Security Law & Policy), who have been assisting the Iraqi High Tribunal, and features contributions by Cherif Bassiouni, David Crane, Bill Schabas, Mark Ellis, Leila Sadat, Mark Drumbl, Paul Williams, and other leading experts.

A year ago, on Oct. 19, 2005, Saddam Hussein and seven of his henchmen began a legal battle of epic proportions, with their lives literally in the balance. The first of several planned trials before the Iraqi High Tribunal focused on the destruction of the town of Dujail and the torture and murder of its inhabitants in retaliation for a 1982 failed assassination attempt. Billed by the international media as "the real trial of the century," the televised proceedings were punctuated by gripping testimony of atrocities, controversial judicial rulings, assassinations of defense counsel, resignation of judges, scathing outbursts, allegations of mistreatment, hunger strikes, and even underwear appearances.

• Was it a mistake to try Saddam in Baghdad before a panel of Iraqi judges?
• Was the Iraqi High Tribunal a legitimate judicial institution?
• Were the proceedings fundamentally fair?
• Did the judges react properly to the defendants’ attempts to derail the proceedings?
• Did the Prosecution prove its case?
• Did Saddam have any valid defenses?
• What precedents did this extraordinary trial set?

Saddam on Trial: Understanding and Debating the Iraqi High Tribunal provides the reader with a thorough understanding of these and a host of other issues related to the Saddam Trial. The text offers a series of essays, in which leading international and criminal law experts discuss and debate more than fifty discrete questions raised by the trial. The book also includes a psychological profile of Saddam Hussein, a chronology of the trial, a glossary of key legal terms, a synopsis of the charges and applicable law, a summary of the evidence and testimony, and English translations of the Tribunal’s Statute, Rules, and other relevant instruments.

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Professor's op-ed on coercive interrogation published in Cleveland's Plain Dealer
Professor Amos Guiora, director of the Institute for Global Security Law and Policy, addresses the issue of coercive interrogation in the context of the U.S. efforts to combat terrorism.

Excerpt:
In the past month, the Bush administration and Congress have battled over important counterterrorism issues. These issues revolve around two questions: 1) whether classified information is admissible at trial against terrorists and 2) whether evidence obtained during the course of unlawful interrogations may be admitted in court.

Although both inquiries are important, they skirt the fundamental issue: What are the limits of interrogation in the aftermath of 9/11? The answer is of absolute importance to those charged with protecting our security - America's interrogators.

Read full article.

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Case Law Review Symposium on Incomplete Contracts
The Symposium on "Incomplete Contracts: Judicial Responses, Transactional Planning, and Litigation Strategies" was organized by Professor Juliet P. Kostritsky. A summary of the Symposium follows.

The recognition that parties will often fail to achieve completely contingent contracts that provide for an optimal outcome in any future state of the world raises the important question of what role courts could or should play in such contracts.

Scholars working in the law-and-economics tradition have suggested that courts should use a hypothetical bargain approach to incompleteness, filling in terms that are optimal (efficient) and that the parties themselves would have achieved were it not for the transaction costs. While the authors in this Symposium draw on this traditional economic analysis of contracts, they explore new insights from economics that complicate the analysis of incompleteness in contracts. Relying on economists' theories of incomplete contracts, the Symposium authors identify uncertainty and the cost of and limited access to information as key problems affecting parties both ex ante when contracts are being drafted and ex post when they are being enforced. Uncertainty is a factor that makes it difficult to negotiate contracts that can simultaneously protect specific investments and also promote efficiency ex post.

The Symposium authors sort out what economists and lawyers mean when they reference an "incomplete contract" and identify two key assumptions of the new economic literature. These two assumptions are (1) courts are imperfect and may be unable to verify certain facts and (2) parties can renegotiate the terms of their contracts. Using these insights, the three authors address the implications of the verifiability problem and possibility of renegotiating contractual terms for (1) parties designing complete and contingent efficient contracts, (2) scholars designing theoretical solutions to the verifiability problem, (3) courts searching for rules that will best promote optimal investment beforehand and ex post efficiency once the future has resolved the prior uncertainty, and (4) contracts scholars attempting to decide what issues should be further explored."

Juliet P. Kostritsky, Introduction

Avery Katz, Contractual Incompleteness, A Transactional Perspective

Robert E. Scott and George G. Triantis, Incomplete Contracts and the Theory of Contract Design

Dick Craswell, The 'Incomplete Contracts' Literature and Efficient Precautions

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Israel is embroiled in the first stage of the "New Hundred Year War," says professor
Amos Guiora, director of the Institute for Global Security Law and Policy at the law school, discusses current unrest with the Cleveland Jewish News. Read full story.

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Prof. Guiora will discuss the Middle East on "Your Call" political affairs call-in show Tuesday, August 8
Director of the Institute for Global Security Law & Policy, Amos Guiora will discuss counter-insurgency campaigns from 1-2 PM Eastern Time on KALW-FM public radio in San Francisco. The broadest can be streamed live on the Internet, or on demand as a podcast any time after the event. Guiora served for 19 years as Lt. Col. in the Israel Defense Forces.

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Professor Jonathan Adler testifies before Senate Environment Committee
Co-Director of the Center for Business Law and Regulation, Prof. Adler testified August 1, 2006 before the Senate Subcommittee on Fisheries, Water and Wildlife on the implications of the Supreme Court's decision in Rapanos v. United States. Read his testimony.

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Professor Michael Scharf testified before the House Armed Services Committee, Hearing on Standards of Military Commissions &Tribunals.
Official recordings and transcripts are available on the House Armed Services Committee website. To hear a recording of the hearing, click on the microphone next to the July 26 Hearing ().

Direct links to the recording and Professor Scharf's prepared statement are provided below:

• Audio (Windows Media)
• Statement (PDF)

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The text of Professor Scharf's prepared statement is reproduced below.


House Armed Services Committee Hearing on Standards of Military Commissions and Tribunals
July 26, 2006
Prepared Statement of Michael P. Scharf
Professor of Law and Director
Frederick K. Cox International Law Center
Case Western Reserve University School of Law
I. Introduction

Mr. Chairman, members of the Committee. I am Michael Scharf, Professor of Law and Director of the International Law Center at Case Western Reserve University School of Law. I have been asked to testify today as an expert on the Nuremberg and Tokyo Tribunals and the modern international criminal tribunals. During the first Bush and Clinton Administrations, I served as the Attorney Adviser in the Office of the Legal Adviser of the U.S. Department of State with responsibility for issues relating to war crimes prosecutions, and I helped draft the Statute and Rules of Procedure of the International Criminal Tribunal for the Former Yugoslavia – the first international war crimes tribunal since Nuremberg. I am the author of seven books about international criminal tribunals, including two that have won national book awards. I have trained the judges of the Yugoslavia Tribunal, Rwanda Tribunal, and most recently the Iraqi High Tribunal, and the War Crimes Research Office at Case which I supervise currently provides research assistance to five international war crimes tribunals. [1] A full biography is attached.

Mr. Chairman, thank you for the opportunity to address the Committee on the international standards of due process that are required for the Military Commissions under international law.

II. Hamdan v. Rumsfeld

Last month, in Hamdan v. Rumsfeld, the Supreme Court ruled that Article 21 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. Section 821, had conditioned the President's use of military commissions on compliance with the "rules and precepts of the law of nations," including in particular Common Article 3 of the Geneva Conventions of 1949, and other provisions recognized by the United States as customary international law such as Article 75 of Protocol I to the Geneva Conventions.

The Supreme Court held that the Military Commissions violated the required international rules of due process by:

• Authorizing the exclusion of the defendant from his own trial (whenever the government invokes "national security concerns" whether the particular evidence is actually classified or not).
• Permitting the admission of unreliable evidence (such as hearsay and evidence gained through coercion).
• Permitting witnesses to testify without disclosing their identities to the defendant (in order to protect intelligence sources and methods).
• Establishing review procedures that do not amount to an appeal to an independent higher court.

The Supreme Court found it significant that these violations were also departures from the procedures employed in U.S. courts-martial, and that the Executive Branch had made no effort to specify why adherence to the courts-martial procedures "was not practicable" for trial of suspected al Qaeda terrorists, as required by Article 36 of the UCMJ.

III. International War Crimes Tribunal Precedent

The Right to be Present and to Appeal to a Higher Independent Court

In his recent testimony before the Senate Judiciary Committee on July 11, the Deputy General Counsel of the Department of Defense, Paul Cobb, drew on the precedent of the Nuremberg and Tokyo Tribunals and the modern International Criminal Tribunals for the former Yugoslavia and Rwanda to argue that international law actually permits trials in absentia, use of hearsay evidence, use of anonymous witnesses, and other deviations from what is required in a United States Court-Martial proceeding.

It is true, for example, that the Nuremberg Tribunal tried Hitler's secretary, Martin Bormann in absentia (it was later discovered that he had actually been dead at the time of the trial). It is also true that the Nuremberg Tribunal admitted into evidence 300,000 unsworn affidavits. And it is true that the Nuremberg Tribunal granted no right of appeal, nor a right to challenge any of the judges.

But international law has not accepted those practices. Rather, the legacy of the Nuremberg Tribunal was tarnished by such procedural shortcomings. Thus, following Nuremberg, U.S. Supreme Court Justice William O. Douglass remarked "I thought at the time and still think that the Nuremberg Trials were unprincipled," and Chief Justice Harlan Fiske Stone characterized the Nuremberg trial as a "high-grade lynching party." Even Nuremberg's Deputy Prosecutor, Telford Taylor, acknowledged that "total reliance on untested depositions by unseen witnesses is certainly not the most reliable road to factual accuracy." And Nuremberg's sister Tribunal, the Tokyo Tribunal, received even harsher criticism, with one of the Tokyo Tribunal's own judges, Judge Henri Bernard of France, opining that "so many principles of justice were violated during the trial that the Court's judgment certainly would be nullified on legal grounds in most civilized countries."

In the years following the Nuremberg and Tokyo trials, the international community took action to address the procedural deficiencies of the world's first international war crimes tribunals. The 1949 Geneva Conventions provided for the first time a list of minimum required due process guarantees for any international or domestic war crimes proceedings. This list of due process safeguards was expanded in Article 75 of Additional Protocol I to the Geneva Conventions, which the Supreme Court in Hamdan v. Rumsfeld noted constituted customary international law. These due process guarantees were further elaborated upon in the Statutes and Rules of the International Criminal Tribunal for the Former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), and the International Criminal Court (1998), and the International Tribunals have repeatedly held that these due process rights are required of all war crimes prosecutions under international law.

Each of the modern war crimes tribunals provide the following due process protections: the presumption of innocence; the right to be informed promptly and in detail of the charges and to have adequate time and facilities to prepare a defense and to communicate freely with counsel of choice; the right to be tried without undue delay; the right to be present during trial and to appointment of counsel; the right to have counsel present during questioning; the right to examine and confront witnesses; the right against self-incrimination and not to have silence taken into account in determining guilt; and the right to disclosure by the Prosecution of exculpatory evidence, and witness statements; and the right to appeal. It is noteworthy that even the Statute of the Iraqi High Tribunal, which was promulgated by U.S. Administrator Paul Bremer in 2003, includes these minimum due process rights.

Thus, recourse to the Nuremberg and Tokyo experience cannot today be used to justify departure from these rights. Rather, any legislation on military commissions needs to reflect the practice of international humanitarian law as it has evolved over the last sixty years, not as it existed at the time of Nuremberg and Tokyo. The law has evolved and there is no doubt that we are bound by it.

Consistent with these internationally recognized fundamental due process guarantees, there should be a right of appeal from the Military Commissions to the Court of Appeals for the Armed Forces, as in the case of courts-martial judgments under the UCMJ. Moreover, the defendant and his civilian counsel should be permitted to be present for all proceedings before the Commission, consistent with the internationally recognized right to be present at one's trial. In the event that classified information must be considered, as Senator Specter has proposed, the Military Commission should employ a process similar to the Classified Information Procedures Act, which authorizes a presiding judge to sift through the information and make available to the defense only whatever is directly relevant and exculpatory, with the option of providing redacted summaries or making stipulations of fact to protect sensitive intelligence sources and methods. See Cong. Rec., June 29, 2006, S6796-S6801 (Statement of Senator Specter).

Use of Anonymous Witnesses

Previous expert witnesses have brought to this Committee's attention the fact that the Yugoslavia Tribunal has permitted use of "anonymous witnesses," whose identity was withheld from the defendant. This precedent, they assert, supports a similar practice within the Military Commissions. It is true that in its very first case, the Yugoslavia Tribunal permitted the testimony of an "anonymous witness" (known only as witness "K") whose identity was withheld from the defendant in order to protect the witness and his family from retaliation. See Prosecutor v. Tadic, No. IT-94-I-T (Aug. 10, 1995) (Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses). But this case is no longer good law.

At the time of the Tadic decision, one of the three judges (Judge Stephens from Australia) filed a strong dissent, stating that the Yugoslavia Tribunal Statute "does not authorize anonymity of witnesses where this would in a real sense affect the rights of the accused." Shortly thereafter in the American Journal of International Law, former Department of State Legal Adviser Monroe Leigh argued that the majority of the Trial Chamber struck the wrong balance between the protection of the witnesses and the rights of the accused. The right to examine or cross-examine witnesses guaranteed by the Yugoslavia Tribunal Statute, Leigh argued, cannot be effective without the right to know the identity of adverse witnesses. Leigh concluded that "it is a radical proposition to suggest that the minimum rights of the accused to a fair trial can be diminished in order to protect witnesses and victims," a point also made in Judge Stephen's dissent in Tadic. See Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 Am. J. Int'l L. 235 (1996). See also Monroe Leigh, Witness Anonymity is Inconsistent with Due Process, 91 Am. J. Int'l L. 80 (1997).

Subsequently, the Yugoslavia Tribunal rescinded the grant of anonymity for witness "K," and the Tribunal has never since granted such a measure. In a later case, the Tribunal made clear that witness anonymity was only appropriate during the pre-trial phase, and that in any event a witness's identity must be disclosed to the Defendant a reasonable time before testifying, although the witness's identity may continue to be protected from the media and public. Prosecutor v. Blaskic, Decision on the Application of the Prosecutor requesting protective measures for victims and witnesses, 5 November 1996, at paras. 22-23. Thus, the Yugoslavia Tribunal precedent does not in fact support the use of anonymous witnesses in the Military Commission. Rather, the Yugoslavia Tribunal's experience reaffirms that the international right of confrontation requires that the defendant know the identity of his accuser.

Hearsay Evidence

Like the Military Commissions, the Rules of Procedure of the Yugoslavia Tribunal and Rwanda Tribunal allow the Trial Chamber to hear any evidence deemed to have probative value, including hearsay evidence. However, before admitting hearsay evidence, the International Tribunals require that a Trial Chamber must assess its "indicia of reliability." Kordic and Cerkez, Appeals Chamber Decision on Appeal Regarding Statements of a Deceased Witness, 21 July 2000, at para 24.

The American hearsay rule generally prohibits a court from using a person's assertion as equivalent to testimony of the fact asserted, unless the asserter is brought to testify in court where he may be probed and cross-examined as to the grounds of his assertion, his sincerity, and his credibility. The American rule against hearsay is not, however, absolute. The Federal Rules of Evidence contain various exceptions to the rule against hearsay, including a residual exception recognized for situations in which there are circumstantial guarantees of trustworthiness, if the court determines that: (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. Fed. R. Evid. 804(b)(5).

The American hearsay rule reflects the view that hearsay is inherently less reliable than direct testimony in several respects. First, a hearsay declarant has not made a solemn oath or declaration before a judicial authority. In contrast, if he were to testify to matters under oath before the Tribunal, he would be more aware of the solemn nature of the proceedings, the importance of testifying truthfully and accurately, and the possible legal consequences of the failure to testify or to do so truthfully. Second, a hearsay declarant is not subject to face-to-face confrontation through cross-examination, which is fundamental to establish the reliability of the statement. As the U.S. Supreme Court has stated, "face-to-face confrontation generally serves to enhance the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person." Maryland v. Craig, 497 U.S. 836, 846 (1990). Third, if the person in the courtroom has either misheard or misremembered the hearsay statements he quotes, this would be almost impossible to establish through cross examination. Finally, the judges can only fully assess the credibility and veracity of these statements by observing the demeanor of the actual declarant while testifying.

While recognizing the inherent unreliability of hearsay testimony, the Yugoslavia and Rwanda Tribunal judges have pointed out that as professional judges, as opposed to lay jurors, they are capable of assessing the appropriate weight and credibility of such statements. Fundamentally, the reason behind the common law's relatively inflexible approach to hearsay evidence has been to ensure that lay jurors would not be unduly influenced by evidence that judges themselves knew, from experience, to be frail and unreliable. It is significant that the International Tribunal judges have been careful to segregate hearsay from direct testimony in preparing their judgments. According to the caselaw of the Tribunals, hearsay evidence is to be considered "with caution." In the recent Samanza case, the Rwanda Tribunal specified in its judgment which evidence had been hearsay and explained that such evidence had to be substantially discounted. Prosecutor v. Laurent Semanza, ICTR-97-20-T (May 15, 2003).

In contrast to the International Tribunals, the Military Commissions are made up of military officers who are not usually legally trained, let alone judges with a lifetime of judicial experience under their belts. Thus, the international tribunal practice of accepting hearsay evidence without restriction may not in fact be appropriate for the Military Commissions. At a minimum, the Military Commissions should be required to assess the "indicia of reliability" before admitting hearsay, and should consider hearsay evidence "with caution," consistent with the caselaw of the International Tribunals.

Torture Evidence

Reports by government officials and in the press include reports of Guantanamo detainees being subject to "water boarding" (simulated drowning), tied to a leash and led around like dogs, stripped naked, held in isolation for months on end and subjected to consecutive days of 20-hour interrogations, subjected to sleep deprivation, being chained hand and foot to the floor for eighteen hours or more without food or water, and being subjected to temperatures below freezing or well over one hundred degrees, having their genitals squeezed and thumbs bent back by interrogators, and being kept for months on end in isolation in a cell that was always flooded with light. See Neil A. Lewis, FBI Memos Criticized Practices at GuantanamoNew York Times, December 7, 2004, at A19.

Until the issuance of Military Commission Instruction No. 10 on March 27, 2006, on the eve of oral arguments in the Supreme Court in Hamdan v. Rumsfeld, the rules of the Military Commissions authorized admission of evidence even if it had been obtained through the most severe abuses constituting torture. While Military Commission Instruction No. 10 explicitly prohibited the Commission from admitting "statements established to have been made as a result of torture," the rule did not bar use of evidence obtained through other forms of unlawful coercion, including cruel, inhuman or degrading treatment. In his recent testimony before the Senate Judiciary Committee, Steven Bradburry, acting Assistant Attorney General and head of the DOJ Office of Legal Counsel, argued that it was necessary to use evidence extracted using a variety of coercive techniques, including water boarding, which have been condemned by the European Court of Human Rights, the International Committee on Human Rights, and UN Human Rights Commission. See Aksoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260; Aydin v. Turkey; 1997-V Eur. Ct. H.R. 1866; Selmouni v. France 1999-V Eur. Ct. H.R. 155; Selmouni v. France 1999-V Eur. Ct. H.R. 155, 183; Robert Goldman, Trivializing Torture: The Office of Legal Counsel's 2002 Opinion Letter and International Law Against Torture," 12 Hum. Rts. Br. 1 (2004) (and cases cited therein).

The prohibition against the use of evidence obtained by torture or other forms of unlawful coercion is one of the "judicial guarantees which are recognized as indispensable by civilized people" for purposes of Common Article 3(1)(d) of the Geneva Conventions. Thus, the Rules of Procedure of the Yugoslavia and Rwanda Tribunal each provide that "no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." ICTY Rule 95; ICTR Rule 95. The Rule, which was proposed by the United States, makes clear that the Tribunal must refuse to admit evidence – no matter how probative – if it was obtained by improper methods. Since the Tribunals do not utilize a pre-trial proceeding to determine admissibility of evidence, this rule is enforced not by keeping the fact finders from viewing such evidence, but rather by prohibiting reference to the inadmissible evidence in the written opinion of the Tribunal.

Even the Iraqi High Tribunal has a provision excluding use of evidence obtained through torture or other forms of unlawful coercion. Rule 59, IHT Revised Rules of Procedure (adopted October 19, 2005), available at law.case.edu/saddamtrial.

A clear statement by Congress rejecting the use of such evidence by Military Commissions (similar to Article 31(d) of the UCMJ) would have two important benefits. First, it would protect against the dangers of unfair trials, and would remove a stain clouding the legitimacy of these important trials in the eyes of the world. Second, it would serve an important prophylactic function in deterring practices that are abhorrent to international law.

IV. The Later in Time Rule

I understand that some in this room may favor the idea of responding to Hamdan by enacting legislation that would simply give Congressional authorization to the President's existing Military Commission system without changing a thing. It is true that for purposes of domestic law, Congress can override the requirements of the 1949 Geneva Conventions if it enacts a later-in-time statute that manifests a clear intent to violate the provisions of these venerable international humanitarian law treaties, to which the United States is a ratifying party. See Breard v. Greene, 523 U.S. 371 (1998). However, Congress has always been extremely reluctant to use this power, as it renders the United States in breach of its international obligations with often serious international legal and diplomatic consequences.

Do we really want to be the only country in the world to go on record as abrogating the Geneva Conventions?

Since the United States military is more forward-deployed than all other nations combined, strict adherence to the Geneva Conventions is more important to us than any other nation. Since the United States is a world leader, our practice is followed by other nations. If we try detainees in violation of internationally-required fair trial procedures, we increase the risk that our own troops and those of our allies (such as Israel) will be subject to similar mistreatment at the hands of others. And if by approving departure from the requirements of the Geneva Conventions, Congress is perceived as expressing disdain for some of the most important treaties of the international system, it will seriously complicate our diplomatic efforts to solve the Lebanon crisis, to eventually withdraw from Iraq, and to maintain support for our efforts to suppress terrorism worldwide.

Some believe that increasing the standards of due process and admissibility of evidence for the Military Commissions would prevent the government from getting convictions. Thus, the Deputy General Counsel of DOD, Paul Cobb, told the Senate on July 11, 2006: "The evidence that the government has available to it in the war with al Qaeda is not always going to have the indicia of reliability that we would expect in our domestic criminal court proceedings." The international tribunal due process rules that I have discussed today do not rise to the level of the protections afforded in a domestic criminal court proceeding. They do, however, provide enough protections to remedy the deficiencies in the existing Military Commissions. The internationally required standards may make it somewhat harder to obtain convictions in some of these cases. But in the broader scheme of things, we lose far more than a few trials when we insist on departing from the due process rights required by the Geneva Conventions and international law.

V. Conclusion

Perhaps no single issue better defines who we are as a nation then our treatment of detainees. I fully understand, based on my professional background, the enormous complexity of counter-terrorism policy, and deeply respect those bravely fighting terrorism world-wide. But denial of internationally recognized fundamental due process rights to detainees violates the core principles on which our great nation was founded, and in the long run will endanger American troops who have so bravely chosen to defend those sacred principles.
Michael P. Scharf
Case Western Reserve University School of Law
11075 East Blvd.
Cleveland, Ohio 44106-7148
Email: Michael.Scharf@case.edu
Phone: (216) 368-3299

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Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. In February 2005, Professor Scharf and the Public International Law and Policy Group, a Non-Governmental Organization he co-founded, were nominated for the Nobel Peace Prize by six governments and the Prosecutor of an International Criminal Tribunal for the work they have done to help in the prosecution of major war criminals, such as Slobodan Milosevic, Charles Taylor, and Saddam Hussein.

During the first Bush and Clinton Administrations, Professor Scharf served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Counsel to the Counter-Terrorism Bureau, Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations General Assembly and to the United Nations Human Rights Commission. In 1993, he was awarded the State Department's Meritorious Honor Award "in recognition of superb performance and exemplary leadership" in relation to his role in the establishment of the International Criminal Tribunal for the former Yugoslavia, including the drafting of its Statute and Rules of Procedure.

A graduate of Duke University School of Law, and judicial clerk to Judge Gerald Bard Tjoflat on the Eleventh Circuit Federal Court of Appeals, Professor Scharf is the author of over fifty scholarly articles and seven books, including Balkan Justice, which was nominated for the Pulitzer Prize in 1998, The International Criminal Tribunal for Rwanda, which was awarded the American Society of International Law's Certificate of Merit for the Outstanding book in International Law in 1999, Peace with Justice, which won the International Association of Penal Law Book of the Year Award for 2003, and casebooks on The Law of International Organizations and International Criminal Law. Scharf is also the author of "The Cleveland Principles of International Law on the Detention and Treatment of Persons in Connection with the Global War on Terror," a document endorsed by over 200 leading experts, which was provided to the U.S. Congress on the eve of the vote on the McCain Amendment.

Professor Scharf has testified as an expert before the U.S. Senate Foreign Relations Committee; his Op Eds have been published by the Washington Post, Los Angeles Times, Boston Globe, Christian Science Monitor, and International Herald Tribune; and he has appeared on ABC World News Tonight, CBS Evening News, Nightline with Ted Koppel, The O-Reilly Factor, The NewsHour with Jim Lehrer, The Charlie Rose Show, the BBC's The World, CNN, and National Public Radio. Professor Scharf also hosts an award-winning Blog on the Saddam Hussein Trial.

Winner of the Case School of Law Alumni Association's 2005 "Distinguished Teacher Award," Professor Scharf teaches International Law, International Criminal Law, Human Rights Law, the Law of International Organizations, and a War Crimes Research Lab. In 2002, Professor Scharf established the War Crimes Research Office at Case Western Reserve University School of Law, which provides research assistance to the Prosecutors of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the International Criminal Court, and the Iraqi Special Tribunal on issues pending before those international tribunals. Copies of over 120 of these research memos are available on the Frederick K. Cox International Law Center War Crimes Research Portal.

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[1] Case School of Law is also the only law school in the country advising the Prosecutor for the Office of Military Commissions. This program is run by my colleagues, Professors Amos N. Guiora and Gregory S. McNeal.

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Professor Michael Scharf debated Saddam Hussein's lawyer, former U.S. Attorney General Ramsey Clark
The debate, about the fairness of the Saddam Hussein Trial , was broadcast on National Public Radio's "Talk of the Nation"

A transcript of the debate is reproduced below.

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Copyright 2006 National Public Radio (R)
All Rights Reserved
National Public Radio (NPR)
SHOW: Talk of the Nation 3:00 PM EST
July 19, 2006 Wednesday

CONAN: Saddam Hussein's first trial is scheduled to wrap up next week in Baghdad. The former Iraqi president is charged with crimes against humanity for his role in the torture and execution of 148 people in the city of Dujail, north of Baghdad.

The killings came in response to what has been described as an assassination attempt in 1982. It's been a long, complicated trial for an untested tribunal court system. Judges were removed, lawyers assassinated, and proceedings interrupted, sometimes by angry outbursts from Saddam Hussein himself. And there remain questions of fairness.

In a few minutes, we'll talk with Michael Scharf, a legal expert and part of the team that trained the Iraqi judges. But first, we'll talk to Ramsey Clark, former United States attorney general, one of Saddam Hussein's trial lawyers. He joins us now from his home in New York City. And it's nice to have you on TALK OF THE NATION.

Mr. RAMSEY CLARK (Attorney for Saddam Hussein; former U.S. Attorney General): Good afternoon. How are you?

CONAN: Very well, thanks. The defense team boycotted the last session, demanding greater security among other things. Will you and your team be in court next week?

Mr. CLARK: We didn't attend last week because of security, and we hope to see the president and the other defendants Saturday. The decision will be made at that time.

My impression is that the defendants believe that the risk to the attorneys is just not worth the price and it's already so interfered with the defense that unless there's a firm assurance of protection, particularly with another trial coming up, to go through this again would be impossible. We may not show up. I hope we will. My belief is that we ought to, and I'm prepared to.

CONAN: Three defense attorneys have been assassinated through the course of this trial. Given that, I know that you've said in the past this can't be a fair trial.

Mr. CLARK: Well, I think that's right. I mean, the trial's being conducted in a war zone. It's being conducted under all the pressures and excuses that war gives for wrongful conduct. The threats to the counsel and the obvious danger to counsel has been clear from the beginning and nothing's really been done. Their families have never received any protection.

The court, at least from December the 7th of last year, said it couldn't agree more that there ought to be relocations and families provided with enough to make out while their loved ones are trying these cases, and adequate protection for the lawyers in the interim. They offered them pistols at one time and offered to provide up to three guards, pay for them.

They never paid for any of the guards. They provided a few pistol permits, but when 20 men come in with automatic weapons, a pistol's only a danger to a person in possession of one.

CONAN: Yes. That aside, and of course that's a big that, but that aside, procedures in the court itself have they been fair, in your view?

Mr. CLARK: No. They've been a disaster, really. It's not easy, if you assume good faith. You've changed the chief judge three times. External pressures have been enormous. The case has been tried by a judge who comes from Halabja, which is most a famous Kurdish town for persecution and death during the administration of Saddam Hussein.

He had family members killed there and friends killed there, and he'd been twice sentenced to death by Baathist courts for opposition to the Baathist government, including the government of Saddam Hussein. Then the second conviction.

He's alleged to have said, and hasn't denied it - he hasn't denied any of these things - that night in 2004 on Iraqi TV he said you don't need a trial, you only need an execution, and he's been unwilling to hear any arguments.

He's told me time and time again you can make your argument later, but later never came. It's a mañana that has never arrived. So it's - the prosecution had, they call it an eight-month trial, but the prosecution took seven months at its leisure. The defense was jammed up into one month, May 15 to June 13, and trying to get witnesses in all the time.

Finally we had 27 witnesses testified and had a lot more we wanted, and the judge said if 27 witnesses can't prove the innocence of your client, 100 can't, which is a classic comment for human rights people to think about. There's no presumption of innocence and there's assumption that no witness has more to say than any other witnesses have to say.

That's the way it's gone all along. You can understand some frustration that the defendants have suffered because of that handling.

CONAN: Is - the chief defense lawyer told The New York Times that Saddam did order most of the executions at Dujail but had every right to do so. Is that the basis of the defense?

Mr. CLARK: He didn't order the executions in the sense that he just did that out of the blue. When you think about - this case is a serious mistake. They should never have brought this case. It probably isn't a case.

1982 was a very dangerous time in the Iran-Iraq war. Iran had pushed back into Iraqi territory from the initial surge of the Iraqis into Iran. Dujail is close to the border.

The Dawa Party, which is an Iranian party committed to overthrow the government of Saddam Hussein, of which the current prime minister of Iraq and the immediate past prime minister - Jaafari and Maliki are both members of the same Dawa party, which is the largest party in the present parliament and the largest Shia Party, and they were involved in this assassination attempt.

But it was two years, almost two years, it was 23 months from the time of the assassination attempt until the entry of a judgment of guilt and death - it was a mandatory death penalty for commission of treason in time of war and acts committed on behalf of the enemy, Iran.

So it was a mandatory sentence and it was nearly a year after that, after the case was reviewed by law professors and deans and judges in the peculiar fashion that they did it, that the recommendation was to enter an order. And the president, as a governor in this state, George Bush signed 154 death warrants while he was governor.

He signed them for minors and for women and for retarded people and for aliens in violation of the Vienna Convention on Diplomatic - he just signed them all. Saddam Hussein signed these 148 orders, but it was almost three years after the event. If this was real repression, you would have strung them up the first day.

CONAN: All right. One final question for you, Ramsey Clark, and that is about the tactics in the courtroom. I'm sure you know that they've come under severe criticism, defense tactics, as disrespectful, as disruptive.

Mr. CLARK: Well, there were plenty of disruptions. You know, I was a witness - supposed to be a witness - they took two days with me in the Chicago Seven trial, and my position on Bobby Seale was that he was just frantic because he couldn't have his lawyer. His conduct was caused by the conduct of the judge, and I think here, you either disrupt or you just sit there silently and wait to be hung.

CONAN: Ramsey Clark, thanks very much for being with us.

Mr. CLARK: Thank you.

CONAN: Have a good trip to Baghdad. Ramsey Clark, former U.S. attorney general, one of Saddam Hussein's trial lawyers joining us from his home in New York City. You're listening to TALK OF THE NATION from NPR News.

Michael Scharf is director of the International Law Center at Case Western Reserve University School of Law. He helped to train the Iraqi tribunal judges, he's an expert in international law, and he joins us now from the studios of member station WCPN in Cleveland. It's nice to talk to you again.

Mr. MICHAEL SCHARF (Director, International Law Center, Case Western Reserve University School of Law): Hi, Neal. Good to talk to you.

CONAN: This was a test run for this new court. You called the trial one of the messiest in history. Has it played out in anything close to what you had hoped?

Mr. SCHARF: Well, it has been one of the messiest trials and mostly because of the tactics of the defendants and the defense counsel. It was interesting to hear Ramsey Clark talk about the Chicago Seven trial, a trial that was, in American history, one of the messiest.

And what happens when you try to prosecute somebody who is not really interested in getting an acquittal but rather in just wrecking the process is that it creates enormous challenges for the judges. But at the e