Human Rights Watch has released their 2008 world report, and it’s getting some play in the Financial Times and other outlets. Here’s the FT lead:

The world?s well established democracies are increasingly prepared to give credibility to authoritarian regimes, failing to probe how autocracies conduct flawed elections to bolster their international standing, a leading human rights body said on Thursday.

In its annual survey of democracy across the world, Human Rights Watch argues that the US and the European Union are too quick to support ?sham democracies? in states like Pakistan, Egypt, Ethiopia and Kazakhstan, turning a blind eye to their abuse of underlying civil and political rights.

?In 2007, too many governments…acted as if simply holding a vote was enough to prove a nation ?democratic,? and Washington, Brussels and European capitals played along,? Human Rights watch said in its latest report.

This is difficult to dispute. That said, Roth’s introduction reveals an interesting tension between the human rights and democracy promotion agendas:

Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, ?democracy? has no legally established definition. The concept of democracy reflects the powerful vision that the best way to select a government and guide its course is to entrust ultimate authority to those who are subject to its rule. It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the ?least bad? form of government, in the words of Winston Churchill, it is an important part of the human rights ideal. Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder.

By contrast, international human rights law grants all citizens the right to ?take part in the conduct of public affairs, directly or through freely chosen representatives? and to ?vote? in ?genuine periodic elections? with ?universal and equal suffrage? and ?secret ballot? so as to ?guarantee[] the free expression of the will of the electors.? It also grants a range of related rights that should be seen as essential to democracy in any robust and meaningful form, including rights protecting a diverse and vigorous civil society and a free and vibrant press, rights defending the interests of minorities, and rights ensuring that government officials are subject to the rule of law. The specificity and legally binding nature of human rights are their great strength. But when autocrats manage to deflect criticism for violating these rights by pretending to be democrats, when they can enjoy the benefits of admission to the club of democracies without paying the admission fee of respect for basic rights, the global defense of human rights is put in jeopardy. Why bother complying with so intrusive a set of rules as international human rights law when, with a bit of maneuvering, any tyrant can pass himself off as a ?democrat??

On the one hand, Roth is correct so far as the state of international law is concerned. On the other hand, it’s far from clear that the clarity of human rights law has had appreciable effects on, you know, respect for human rights.

Indeed, whether human rights treaties have had any effect on state behavior is a disputed point in both international relations and international law scholarship. Compared to the various waves (and smaller counterwaves) of democratization that have occurred in recent decades, however, the advancement of human rights looks like its lagging pretty badly. So I’m not sure that the codification of human rights law is the great advancement that Roth proclaims it to be.

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Al Baker reports on some stunning homicide figures in the New York Times:

New York City is on track to have fewer than 500 homicides this year, by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963.

But within the city?s official crime statistics is a figure that may be even more striking: so far, with roughly half the killings analyzed, only 35 were found to be committed by strangers, a microscopic statistic in a city of more than 8.2 million.

If that trend holds up, fewer than 100 homicide victims in New York City this year will have been strangers to their assailants. The vast majority died in disputes with friends or acquaintances, with rival drug gang members or ? to a far lesser degree ? with romantic partners, spouses, parents and others.

The low number of killings by strangers belies the common imagery that New Yorkers are vulnerable to arbitrary attacks on the streets, or die in robberies that turn fatal.

In the eyes of some criminologists, the police will be hard pressed to drive the killing rate much lower, since most killings occur now within the four walls of an apartment or the confines of close relationships.

That last fact is too bad — I was looking forward to the day when the combined number of homicides on Law & Order, Law & Order: Special Victims Unit, and Law & Order: Criminal Intent exceeded the actual number of homicides in the five boroughs.

Hmmm…. come to think of it, most of these shows are set in Manhattan. I wonder if we hae reached the point when the annual number of homicides in that borough are less than the number of homicides that would be portrayed on television. Not just the L&O franchise, but also CSI: NY and the half-dozen other crime shows I’n sure are set in the city.

Readers, go and check this out!

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Over at Passport, Mike Boyer alerts me to a unique piece of litigation:

Nebraska State Senator Ernie Chambers has had enough of plagues, famines, droughts, hurricanes, and genocides. Chambers considers these incidents to be terrorists acts. To stop them, he’s suing the person responsible for them?God.

Chambers, who before becoming a state legislator was a barber, filed a lawsuit last Friday in Nebraska’s Douglas County District Court, naming himself as the plaintiff and God as the defendant, a permanent injunction “ordering defendant to cease certain harmful activities and the making of terroristic threats.”

You can read the whole court filing by clicking here.

Before the Voloh Conspiracy and Opinio Juris get a hold of this, I have to sday that my favorite bit is this: “Defendant has made and continues to make terroristic threats of grave harm to innumerable persons.” Whoa there — Chambers has concrete information about these new threats?

After an allegation like that, if I was God’s lawyer I’d advise him to smite Chambers until his tongue fell out and his flesh was covered with boils countersue for libel.

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The New York Times Magazine offers a sneak preview of next week’s cover story — Jeffrey Rosen’s article about Jack Goldsmith’s experiences at the Justice Department’s Office of Legal Counsel (Full disclosure: Jack is a good friend and I’ve blogged about him before). Goldsmith is the author of The Terror Presidency: Law and Judgment Inside the Bush Administration , due out in the next week.

This paragraph from Rosen’s story should sound familiar to those who have observed Bush’s foreign policy style:

In Goldsmith?s view, the Bush administration went about answering [national security law] questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, ?go-it-alone? view of executive power. As Goldsmith sees it, this strategy has backfired. ?They embraced this vision,? he says, ?because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.?

Let’s have some Madlibs fun and insert some blanks into this paragraph:

In Goldsmith?s view, the Bush administration went about answering __noun__ questions in the wrong way. Instead of reaching out to __noun__ and __noun__ for support, which would have strengthened its __adjective__ hand, the administration asserted what Goldsmith considers an unnecessarily broad, ?go-it-alone? view of __noun__ . As Goldsmith sees it, this strategy has backfired. ?They embraced this vision,? he says, ?because they wanted to leave __noun__ stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand __noun__ have diminished it.?

Discussion question: would it be safe to say that this applies to almost every Bush administration policy initiative?

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Via Jonathan Adler, I see that while I was away FCC chairman Kevin Martin did not react well to the Second Court of Appeals decision to strike down the FCC’s policy governing “fleeting expletives”. The court characterized the policy — designed to make the network liable when someone unexpectedly swears during a live broadcast.– as “arbitrary and capricious.”

Martin’s response — on the FCC’s web site, no less — contains the following:

I completely disagree with the Court?s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that ?shit? and ?fuck? are fine to say on broadcast television during the hours when children are most likely to be in the audience.

The court even says the Commission is ?divorced from reality.? It is the New York court, not the Commission, that is divorced from reality in concluding that the word ?fuck? does not invoke a sexual connotation.

A few questions:

1) Did Martin write this himself or did people with actual training in press relations whip this statement up?

2) By the FCC’s interpretation, is Martin is obnoxiously hitting on erveryone who reads his statement?

3) Am I obviously encouraging rape and bestiality when I say, “F#$% Kevin Martin and the horse he rode in on?” or could I have a different intent in mind?

4) As Adler asks, “Given the Second Circuit’s ruling, could a network air Martin’s remarks without fear of federal sanction?”

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“Striking the proper balance on intellectual property rights” is one of those ideas I put in my conceptual hope chest along with “unilateral elimination of all agricultural subsidies” or “fiscal conservativism” or “NBC renewing Friday Night Lights for another season” as policies I’d really like to see but don’t expect to happen.

So, it’s a pleasant surprise to read the Economist’s tech.view column explain that the Supreme Court actually took a positive step on patent rights:

In a unanimous decision that is being hailed as the most important patent ruling in decades, the Supreme Court early this week swept aside the non-obviousness test used by the appeals court. In its place, a common-sense standard based on real-world conditions is to be applied to all patent applications that combine (as most do) elements of existing inventions.

The case ruled on by the justices concerned an accelerator pedal developed by a Canadian company called KSR. The pedal could be adjusted for a driver?s height and used an electronic sensor, rather than a mechanical cable, to change the engine speed. Teleflex, a rival manufacturer, demanded royalties, claiming the device infringed one of its patents.

KSR argued that Teleflex had combined existing elements in an obvious way, and that its patent was therefore invalid. A district court in Detroit agreed, but the decision was subsequently overturned by the appeals court in Washington, DC. Under the Supreme Court?s new definition of obviousness, Teleflex would have been lucky to get a patent for the pedal in the first place.

The justices? opinion has been welcomed by the high-tech community. It is impossible to build a laptop, mobile phone or video recorder without infringing dozens of the thousands of patents that cover the various components involved. Computer firms have responded by engaging in a patents arms race and negotiating cross-licensing deals with everyone they expect will be involved.

This is wasteful enough for the Intels, Microsofts and IBMs that can afford such profligate practices. But it can be life or death for smaller, innovative firms. When challenging incumbents? old-fashioned ways, upstarts like Vonage can find themselves forced out of the market by dubious patent litigation rather than actual competition.

The Supreme Court?s ruling this week will make such anti-competitive practices harder to sustain. Vonage, for one, may be the first of many to seek legal redress from all the shoddy patents endorsed by America?s over-eager courts.

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I’ve been remiss in not posting about the brewing brouhaha about the role that Republican members of Congress, as well as the White House, played in the removal of several U.S. Attorneys in December 2006. Comment away.

If this New York Times story is accurate, then this story has the perfect storm of tidbits to fuel numerous news cycles: Harriet Miers, Karl Rove, White House overreaching, and the kind of investgation that promises regular tidbits of new information.

UPDATE: Ah, the Washington Post’s Dan Eggen and John Solomon feed the storm:

The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today.

The dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October that he had received complaints that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman.

Gonzales approved the idea of firing a smaller group of U.S. attorneys shortly after taking office in February 2005. The aide in charge of the dismissals — his chief of staff, D. Kyle Sampson — resigned yesterday, officials said, after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress.

Lawmakers requested the documents as part of an investigation into whether the firings were politically motivated. While it is unclear whether the documents, which were reviewed yesterday by The Washington Post, will answer Congress’s questions, they show that the White House and other administration officials were more closely involved in the dismissals, and at a much earlier date, than they have previously acknowledged.

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Over at the Council on Foreign Relations web site, Dan Ikenson and Robert E. Lighthizer are debating whether the WTO dispute settlement system is too robust for its own good.

Meanwhile, at the International Economic Law and Policy blog, my colleague Joel Trachtman discusses why Indonesia has decided to sell Baxter HealthCare exclusive access to its avian flu virus samples.

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The international law blog Opinio Juris announces what I believe to be a first — an executive branch official openly participating in a blog:

Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here.

The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser?s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.

UPDATE: Another first for bloggers.

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Comment away on the Hamdan decision and its implications.

No, wait, before you do that, click over to see what Randy Barnett, Orin Kerr, and Jack Balkin think about the decision (Pajamas Media has a big roundup post as well).

Balkin first:

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way….

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President’s possible overreaching.

Both Barnett and Kerr observe how Hamdan highlights the Bush administration’s strategic miscalculations on this issue. Barnett first:

It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war….

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

Finally, Orin Kerr:

The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts ? and in particular, the Supreme Court ? to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?

Talk amongst yourselves…. and play nice.

UPDATE: Stephen Bainbridge ponders next steps for Congress.

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