Vincent G. Rinn Law Library

Inauspicious Start For ICC's First Trial

 A story from the January 30 issue of the Christian Science Monitor, describes what may be considered a serious misstep in the International Criminal Court's (ICC) first  trial for war crimes. It was in a case that had been years in preparation by the prosecutor Luis Moreno-Ocampo, against Thomas Lubanga, charged with recruiting 30,000 child soldiers in the Democratic Republic of Congo.

The recantation of his testimony be a former child soldier, took the participants  totally by  surprise  at the trial. This inauspicious start to the Court's first case seem to indicate some serious lapses in the Court's responsibility toward its witnesses.The Monitor article  states  that "Lorraine Smith, of the International Bar Association office at The Hague, points out that ICC judges a year ago adopted a rule disallowing the defense from "proofing" its witnesses – advocating instead a "witness familiarization" approach that is carried out by another court agency."

Some background on these legal concepts of "proofing" and "familiarization" can be found in an article (Developing a System of Justice at the International Criminal Court ) that was  mentioned in a previous blog posting, written by an American judge, Joshua Weinstein, in the 2007 California Courts Review. He had spent two and a half months with the staff of the ICC.

In that article he writes, "Witness familiarization and proofing are commonplace practices in the United States. But they are either illegal or unethical in almost all other jurisdictions. Familiarization is simply informing a witness about what to expect in court, explaining how the court process works and what his or her role will be—in other words, explaining the physical layout of the courtroom; the role of the judge (or judges in the case of the ICC), attorneys, and witnesses; and how the testimony will proceed. Proofing is what we in California would call witness preparation and consists of reviewing the witness’s prior statements and expected testimony."

He says that "...the ICC itself has a victim and witness unit that could conduct familiarization and proofing." The witness unit is to be a neutral actor  "...whose obligation is to discover the truth and maintain the well-being of witnesses,..."

Given what happened at the trial, one would have to conclude that the witness unit failed on both counts. The child witness was certainly afraid of being clearly identified in the presence of the warlord that he was accusing. The article quotes Paul Williams, an international legal expert at American University in Washington, that "In the Yugoslav and Rwanda tribunals, combatants could testify as 'Witness X' from a separate room, using a voice modulator. The right for the defendant to confront his or her accuser does not require that they be face to face, but means that they can hear clearly what the witness says."

The witness unit's lack of meaningful "familiarization" and its apparent failure to "maintain the well being of witnesses", has also resulted in the frustration of the Court's mission "to discover the truth".

New GPO "Future Digital System" Now In Beta

At the 2009 American Library Association Midwinter Meeting held in Denver, CO, Jan 23–28, Ric Davis, Acting Superintendent of Documents,informed the attendees that the Government Printing Office's FUTURE DIGITAL SYSTEM (FDsys), was now in public Beta. Users outside the government documents library community might be asking: What is this "FDsys" ?

For the last few years, GPO has been hard at work reorganizing and redesigning itself to effectively confront the huge changes that have occurred in the technology  and business of printing plus the development of  digital methods of information production & distribution. The old model of centralized printing and dissemination could not handle the demands of the new information environment.

In the early 1990s GPO implemented GPO ACCESS, a service that provides free electronic access to a wealth of important information products produced by the Federal Government. But "GPO’s implementation of new products and services has been conducted in an ad-hoc  manner, which has resulted in the development of disparate systems. Additionally, GPO has failed to update its technological abilities to keep pace with changes in the information dissemination environment,..."

What GPO needed to deal with the new demands was a unified system that would also be able to adapt to future changes. This new comprehensive system, known by the acronym FDsys, should provide GPO with the technical and management capabilities to not only catch up the changes in its environment  but to aggressively move forward in the 21 Century. The goals set out for this new system are certainly ambitious. Here is an official description of what is expected of it:

"The proposed Future Digital System will ingest, preserve, and provide access to the information produced by the U.S. Government--including information produced by all three branches of Government --and to the material currently in the custody of the Government Printing Office (GPO). The proposed system is envisioned as a comprehensive, systematic, and dynamic means for preserving any kind of content, independent of specific hardware and/or software. The system will enable GPO customers to obtain hard copy publications and to electronically access the content they want, and it will enable GPO to deliver that content in the formats its customer’s desire. The system should automate many of the content lifecycle processes and make it easier to deliver the content in formats suited to the needs of GPO customers. The proposed system is required to be policy neutral so that it can support not only GPO’s current operational policies but also changes that are expected to emerge."

"The information on GPO Access is in the process of being migrated to FDsys, a process that will be complete in mid-2009. The migration is occurring on a collection-by-collection basis. The information on GPO Access will remain current and continue to be available until migration is complete."
(Source: http://www.gpo.gov/projects/pdfs/FDsys_ConOps_v2.0.pdf )

Users can try out the Beta version of the FDsys, at http://fdsys.gpo.gov
GPO is requesting your feedback on the system. All questions and comments should be directed to pmo@gpo.gov

Presidential Documents On New Schedule

In what may seem more symbolic than substantive, what use to be the Weekly Compilation of Presidential Documents (WCPD) has become the Daily Compilation of Presidential Documents (DCPD), with the start of the Obama  Administration. The longstanding WCPD has been distributed in print format by the GPO (Government Printing Office), with an online version also available. With the new administration, the DCPD will only be available online.

The online-only publication will be permanently maintained on the GPO Web site as an official publication of the Administrative Committee of the Federal Register. However, the annual publication of the Public Papers of the Presidents of the United States will continue to be published in paper and will be made up of the content of the DCPD. The move to daily online publication is seen as a way to increase availability  and the timeliness of the documents to the general public.

While the official documentation of the new president begins, the National Archives has insured that  a copy of the Bush administration's website has also been archived. This, of course, is in addition to the official compilations of presidential documents which are to be published for the Bush administration.

In a related development involving executive agencies, as opposed to the President , "The National Archives and Records Administration (NARA) issued a memorandum to agency records officers on March 27, 2008, stating that NARA would not conduct an end of administration web snapshot or harvest of Executive Branch websites nor require agencies to do so. This memorandum did not apply to Presidential records or to records of the Congress."

While this may seem like a major oversight on the part of NARA. In an April 2008 posting, NARA explains that the agencies themselves have that responsibility, "In January 2005, however, NARA issued "Guidance on Managing Web Records," which addresses agencies' responsibilities for identifying, managing and scheduling web materials they identify as Federal records." This leaves the agencies to determine, with NARA guidance, " how to manage its web records, including whether to preserve a periodic snapshot of its entire web page."  One hopes that the agencies will follow this guidance to preserve a useable historical record for posterity.

Former U.S. Attorney Patrick Collins to Head Illinois Reform Commission

The Inauguration rightfully held most Illinois citizens' attention on Tuesday. But another event that day in Illinois, should also be recognized as offering hopeful changes to our local Illinois political system. The  llinois Reform Commission met for the first time on January 20. Lt. Governor Pat Quinn had  previously announced the formation of The Illinois Reform Commission to be headed by Patrick Collins, a former assistant U.S. attorney. Mr. Collins  served for 12 years and prosecuted many public corruption cases  including the hired truck case in Chicago and Operation Safe Road that lead to  the conviction of former Governor George Ryan. The Commission is charged with recommending ways to clean up Illinois government to end the corruption that has afflicted Illinois for successive administrations.

Mr. Collins has assembled a very diverse panel of exceptional Illinois citizens to carry out the Commission's charge. ( list of members) Among these is Father Dennis H. Holtschneider,  President, DePaul University. As an editorial article in the Daily Herald, ("Yes we can clean government here") says, they are taking on "the herculean task of cleaning up governments in Illinois". The Commission will need the help of the public in this endeavor. This is being facilitated by the creation of the web site, ReformIllinoisNow.org  which will welcome input from members of the public and will keep citizens up-to-date on the Commission’s activities and public hearings.

Hopefully, the changes to politics as usual, at the national level, will also be reflected in our own state government.

Chicago Tribune Article on Occasion of Professor Colliton's Death

In addition to the formal death notice, a Tribune reporter has written an article that provides some insight into James Colliton the man and the teacher. He will be missed a lot.

James Colliton, 1944-2009: DePaul professor was an expert on tax law
By Steve Schmadeke | Tribune reporter  January 21, 2009

DePaul on-campus users ( or signed on through proxy server) can click on or input the following URL to directly access the article on Professor Colliton from the PorQuest Newspapers subscription database :
Document URL:
http://proquest.umi.com/pqdweb?did=1629895901&sid=1&Fmt=3&clientId=31663&RQT=309&VName=PQD

Flap Over Disclosure Bill a Window On "Secret Law"

A recent posting on the Secrecy News Blog of Federation of American Scientists tells about a disagreement between the current US Attorney  General Mukasey  and Obama's incoming head of Justice Department Office of Legal Counsel (OLC), Prof. Dawn Johnsen. It is one more parting example of the Bush administration's concerted creation of "secret law" which was unknown outside the executive branch and frequently countermanded the provisions of laws actually passed by Congress. The argument was over the introduction of S. 3501. A bill to ensure that Congress is notified when the Department of Justice determines that the Executive Branch is not bound by a statute. The incoming OLC official, Prof. Dawn Johnsen, actually conceived of the proposal embodied in the bill.

In an April 2008 congressional hearing, " SECRET LAW AND THE THREAT TO DEMOCRATIC AND ACCOUNTABLE GOVERNMENT ",Senator Feingold's says that in addition to the written laws & regulations, the judicial & executive interpretations of these laws, also become law. So not disclosing these internal interpretations but basing admin. conduct on them, both deceives the lawmakers and the American people, and creates a secret regime of executive law that is unaccountable because of its secrecy. He cites the Yoo torture memorandum, undisclosed FISA Court legal rulings and claims that published executive orders can be waived or changed without any notice, as specific examples of secret law.

Ironically, Attorney Gen. Michael Mukasey seems to be also making a separation of powers argument to defend such practices in a memorandum submitted to the Senate. He claims that the reporting requirements in the bill would undermine the executives constitutionally protected right to obtain confidential advise and would have Congress mandating the disclosure of classified executive information. But legal positions that become secret policy are no longer just advice, and classification of such conduct with no showing of any actual national security content, is just self-serving concealment.

College of Law Students: the Law Library wants to hear from you!

The 2009 Annual Survey on Library and Computing Services is now posted. DePaul Law students, please take a few moments to complete it.  The staff and administration of the Rinn Law Library is very interested in your opinion and feedback on library services.

Abraham Lincoln Symposium By Seventh Circuit Bar Association

Abraham Lincoln Bicentennial Program

Abraham Lincoln  His Legal Career and His Vision for America
Presented by the  Seventh Circuit Bar Association
co-sponsored by The Chicago History Museum
February 6, 2009
Preston Bradley Hall, Chicago Cultural Center
78 East Washington, Chicago, IL

The symposium will consist of five sessions:

I. Keynote Address – Walter Dellinger will remark on Lincoln's path to becoming a lawyer, his practice as a trial and appellate lawyer, his application of the skills of a lawyer to his construction of political positions, public policies and his interpretation of the Constitution.

II. Panelists will discuss the law of slavery, slavery cases in Illinois 1835-1860, Lincoln’s runaway slave cases, Lincoln’s view of the Fugitive Slave Act, Lincoln and abolition.

III. A discussion on Lincoln’s re-entry into politics and the issues he confronted: the Nebraska Act and its repeal of the Missouri Compromise, the Dred Scott decision, the Lincoln-Douglas Debates.

IV. Lincoln’s view of the Constitution and Presidential powers.

V. Concludes with debate on Lincoln’s Legacy.

Registration for symposium

Foreclosure Loan Modification Proposal From Columbia Professors

An article in the current online ABA Journal By Martha Neil , reports on a research paper from the the Paul Milstein Center for Real Estate at the Columbia Business School that proposes different measures that the federal government can take to ameliorate the current economic crisis. The authors, a Columbia law professor, Edward Morrison, and two business professors, Christopher Mayer and Tomasz Piskorski, are recommending facilitating the modification of privately securitized mortgages which as they say are at the core of the problem. These mortgages "accounted for more than one-half of foreclosure starts in 2008 despite representing about fifteen percent of all outstanding mortgages." They argue that their main proposals of :

(1) "Compensating servicers who modify mortgages... thereby aligning servicers' incentives with the interests of borrowers and investors."

(2) "Removing legal constraints that inhibit modification"  and providing  "a safe harbor from litigation for reasonable, good faith modifications that raise returns to investors."

will be more effective and not have the significant downsides that the revison of the bankruptcy Code or the FDIC proposal which does pay servicers for loan modifications but does not change the legal barriers to modification, both have.

Another major advantage that the authors see in their proposals is substantial savings to taxpayers as compared to that of other proposed measures. "Our proposal might prevent as many as one million foreclosures at a cost of no more than $10.7 billion that can be funded by TARP money. Other proposals do not address both barriers that servicers face. As well, our proposal would cost taxpayers considerably less money than other programs currently under consideration, with no requirement to provide costly loan guarantees. Losses for bad loans remain with private investors rather than taxpayers."

PDF copy of the full report

"The Trial of Donald Rumsfeld", Book From The Center for Constitutional Rights

Many concerned US  citizens tend to think of war criminals as being the people that the International Criminal Court  or other International Criminal Tribunals, indict and attempt to capture and bring to trial, from places like the Democratic Republic of the Congo, Rwanda, Darfur, Serbia or Chile.

Not often does it cross our minds  that  U.S. citizens and even U.S. government officials, might also be war criminals. How can that be possible since we are the ones constantly telling other countries and their leaders about democracy and respecting human rights ? After all, doesn't the US provide the main location for  the United Nations with it's myriad humanitarian programs. Don't we provide asylum to hundreds of dissidents fleeing oppressive and even murderous regimes? How can someone make the  case that some of our own national leadership might be guilty of war crimes and of undermining our own values and institutions ?

Attorney Michael Ratner and  The Center for Constitutional Rights do just that in the book "The Trial of Donald Rumsfeld A Prosecution by Book.  The subtitle is telling, as this may be the only place where defendants are identified, evidence marshaled and a verdict  required. As an excerpt from the book says:

"This is an unusual trial. It is occurring in the form of a book that lays out the evidence that high-level officials of the George W. Bush administration have ordered, authorized, implemented and permitted war crimes, in particular the crimes of torture and cruel, inhuman and degrading treatment. We are proceeding to build this case against what we call the “torture defendants” in this way because at this point there appears to be no other means of holding high Bush administration officials criminally responsible for their war crimes."

An article in the Winter 2008 Amnesty International Magazine, "The Trial of Donald Rumsfeld"  provides information for the charges that high US government official and advisers violated the international Convention Against Torture, the Geneva Conventions, the U.S. War Crimes Statute and the federal Torture Statute. The book is available from AMAZON and a PDF document of the first two sections, The opening Statement and the Summary of the Indictment, can be downloaded from the Center's website.