Recently in International Category

HONG KONG--A court struck down the government's emergency anti-mask law as unconstitutional, a ruling that underscored the independence of the city's British-style judiciary that is under pressure from China to back a stronger crackdown on social unrest.

This morning, the U.S. Supreme Court heard argument for the second time in the case of Hernandez v. Mesa, numbered 17-1678 on its second trip to 1 First Street.

Homeland Security Secretary Kirstjen Nielsen warned Sunday that the illegal immigrant caravan heading toward the U.S. could be exploited by cartels that control most of the illegal flow of people through Latin America.

That is apparent from five sources of law: the text and original understanding of Article I, the overall structure of the Constitution, landmark Supreme Court precedent, longstanding federal statutes, and deeply rooted U.S. military commission practice.

First, the text and original understanding of Article I demonstrate that international law does not impose a limit on Congress's authority to make offenses triable by military commission.

Imagine that, not only looking to the text and original understanding of the Constitution, but looking to them first. That is really the only approach to constitutional interpretation that is consistent with a respect for the people's right of self-government, i.e., democracy. The Constitution means what the people meant it to mean until the people, not the courts, change it.

And given that a Justice Kavanaugh would replace Justice Anthony Kennedy -- the swing vote in several key national security cases (such as Boumediene v. Bush, in which the Supreme Court held that Guantanamo detainees have a constitutional right to habeas corpus) -- his impact in this area of the law could bring significant change when such cases reach the court.

Given that Boumediene was wrongly decided (see CJLF brief), that would be a significant change in the correct direction.

Judge Ikuta of the Ninth Circuit takes us on a detailed tour of Federal Rule of Criminal Procedure 4 and its 2016 amendments in In re Pangang Group Co., Ltd., No. 17-72370.

A 26-year-old convicted killer was executed by lethal injection Monday, the seventh person to be put to death since the method was introduced and the first since 2009, Corrections Department chief Pol Col Naras Savestanan said.

Theerasak Longji, 26, was convicted for the brutal killing of a 17-year-old boy in Trang, He was 19 at the time of the murder.

He stabbed his victim 24 times in a frenzied attack on July 17, 2012, before making off with his mobile phone and money. The perpetrator reportedly knew the victim, and was motivated by jealousy over a girl.

Amnesty International issued a statement condemning the move.

"There is no evidence that the death penalty has any unique deterrent effect, so the Thai authorities' hope that this move will reduce crime is deeply misguided. The death penalty is the ultimate cruel, inhuman and degrading punishment and provides no quick-fixes to problems the authorities want to confront."

Capital punishment must remain to deal with severe crime and ensure national peace and most people agree with it, Prime Minister Prayut Chan-o-cha said Tuesday.

John Myers reports for the L.A. Times:

Gov. Jerry Brown agreed on Wednesday to expand the California National Guard's efforts on crime and drug issues that cross the state's border with Mexico, but insisted troops would not be used to enforce immigration directives from President Trump.

"This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life," Brown wrote in a letter to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James N. Mattis. "And the California National Guard will not be enforcing federal immigration laws."

Here is the text of the letter:

Reuters reports from Jerusalem:

Israel's parliament gave preliminary approval on Wednesday for legislation that would make it easier for a court to impose a death sentence on assailants convicted of murder in attacks classified as terrorism.

Israeli military courts - which handle cases involving Palestinians in the occupied West Bank - already have the power to issue the death sentence, although this has never been implemented. The only case of an execution in Israel was carried out against convicted Nazi war criminal Adolf Eichmann in 1962.

The amendment to the penal code would still require three more readings if it is to become law. Currently, a death penalty can only be imposed if a panel of three military judges passes sentence unanimously. If the amendment is adopted, a majority verdict would suffice.

There is one sure-fire way for a convicted defendant to avoid execution of his sentence: suicide.  Hermann Göring infamously took this way out on October 15, 1946, just before he was to be hanged.  The Nuremburg tribunal had denied his request to be shot instead.

Today, Cleve Wootson reports in the WaPo:

Shortly after hearing his fate, former Bosnian Croat military chief Slobodan Praljak shouted "I am not a war criminal!" and lifted a vial of liquid to his lips.

He tilted his head back and swallowed.

A short time later, he told the confused court -- and the judge who had affirmed his 20-year sentence for murdering Muslims and other war crimes  -- "I just drank poison."

His death was reported by Croatian state TV later on Wednesday.

As noted in the update to yesterday's News Scan, Florida and Texas both carried out executions yesterday.  The Texas case involved the Vienna Convention claim rearing its ugly head again.

The usual suspects make the usual noises that the United States violated international law by going ahead with the execution, but it did not, either in this case or the landmark Medellin case.  Some background info is given in this post from 2014 on another Vienna Convention case.

In a nutshell, the United States is treaty-obligated to comply with the decision of the International Court of Justice in the Avena case, even though it is wrong, in the 55 cases that were before the ICJ in that matter.  The Optional Protocol, to which we were a party at the time but have since withdrawn, requires compliance.

However, compliance means only that a court review the case to determine if there was any prejudice from the violation.  See ¶ 121.  The ICJ rejected Mexico's contention that retrial or resentencing was required in every case.  See ¶ 123.

The U.S. Supreme Court has issued the following order in Trump v. IRAP, No. 16-1436, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U.S. was unable to properly vet admittees (bold-face added):

We granted certiorari in this case to resolve a challenge to "the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780." Because that provision of the Order "expired by its own terms" on September 24, 2017, the appeal no longer presents a "live case or controversy." Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

The portion I have bold-faced means that the obnoxious Fourth Circuit opinion is wiped out as precedent.  CJLF's brief in the case, which urged precisely this result, is here.  At the time of the main briefing, we were the only ones calling for this, although in a supplemental letter brief in response to the Court's request the Solicitor General came around.

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.

As noted in this post Sunday, the 90-day travel ban in the case before the Supreme Court expired on that day and was replaced by a very different order.  The 120-day refugee restriction will expire in October.  Yesterday the Supreme Court took the case off the calendar and ordered the parties to further brief the mootness issue:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The parties should also address whether, or to what extent, the scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot. The briefs, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before noon, Thursday, October 5, 2017. The cases are removed from the oral argument calendar, pending further order of the Court.

CJLF's amicus brief supporting neither party, specifically on mootness, is here.  Amy Howe has this post at Howe on the Court, republished at SCOTUSblog.

The same executive order that announced a 90-day travel ban for selected countries also directed cabinet officers to develop a more tailored approach to countries that cannot or will not provide the information needed to vet people coming in.  The 90-day ban expires today, and the Administration announced the replacement package in a Presidential proclamation.

Laura Meckler has this story in the WSJ.  See also Friday's post.