Legal Commentary

Archive

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NOAH S. LEAVITT Esq.
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Noah's international legal experience includes the International Law Commission of the United Nations in Geneva, the University of Cape Town Legal Aid Clinic in South Africa; and the International Court of Justice in The Hague. He also served as a delegate of the National Coalition to Abolish the Death Penalty to the UN Racism Conference in Durban and to regional follow-up meetings. In the U.S., Noah has worked for: the U.S. Department of Justice, the Michigan Poverty Law Program; the Center for Civil Justice, for which he was awarded one of three John J. Curtin, Jr. Justice Fellowships from the ABA Commission on Homelessness and Poverty; and the Jewish Council on Urban Affairs as the Advocacy Director.

He has a BA from Haverford College, an MA from the University of Chicago and a JD from the University of Michigan Law School, where he was an editor of and contributor to the Michigan Journal of International Law. After graduation, he clerked for the Honorable Steven. D. Pepe (ED-MI).

Noah is currently a teacher at Whitman College. Please contact him at nsleavitt@hotmail.com.

 Columns by Noah S. Leavitt

Milosevic Dies, While Saddam Is Tried: What the Death of "The Butcher of the Balkans" Means for the Prosecution of the "Butcher of Baghdad"
FindLaw guest columnist, attorney, and Whitman professor Noah Leavitt counterposes the end of the trial of Slobodan Milosevic -- with the defendant's death -- with continuing proceedings in the trial of Saddam Hussein. Leavitt argues that Milosevic's trial has a number of lessons for the tribunal conducting the trial of Saddam -- including that Saddam's tribunal should create a full, definitive historical record as to the facts relating to Saddam's abuses.
Monday, Mar. 13, 2006

The U.S. Government's Flawed Response to Hurricane Katrina: Why It Should Be Viewed as a Human Rights Failure, and What the Consequences of That Could Be
FindLaw guest columnist, attorney, and Whitman professor Noah Leavitt describes a new way in which several groups of Hurricane Katrina victims and their attorneys are looking at the government's failure to effectively address either the prospect, or the fallout, of the storm. These groups argue that while the storm was a natural disaster, the government's response amounted to a violation of human rights --one that is still continuing as victims remain homeless. Leavitt notes the advantages, for the victims, of this approach -- including the involvement of U.N. and Inter-American Commission human rights institutions -- and its possible consequences.
Tuesday, Mar. 07, 2006

Nuremberg at 60: How The United States Is Turning Away from Its Proud History
FindLaw guest columnist and Whitman professor Noah Leavitt discusses the legacy of the Nuremberg trials -- and argues that the U.S. is betraying that legacy now, in its conduct of the "war on terror." Leavitt reminds us that it was hardly a foregone conclusion that World War II would end with trials, rather than summary executions -- but that the U.S. ultimately took the lead in insisting that the rule of law should prevail. He notes some developments that, he argues, have suggested that Nuremberg's rule of law legacy was being honored in the international community -- but also notes some U.S. actions that, he argues, undermine the international rule of law.
Tuesday, Feb. 21, 2006

Hamas's Ironic Victory?: Why It May Change The Way International Law Defines and Prohibits Terrorism
FindLaw guest columnist, attorney, and Whitman professor Noah Leavitt discusses the international law ramifications of Hamas's ascension to power. Leavitt argues that Hamas's victory may -- and should -- spur a renewed effort on the part of the U.N. to settle on a single, set definition of terrorism; specify who will be deemed responsible if it occurs; and act to prevent and punish it.
Tuesday, Feb. 07, 2006

Saddam's Trial: Can It Still Meet The Conditions For It To Be Deemed Fair Under International Law?
FindLaw guest columnist, attorney, and Whitman professor Noah Leavitt discusses recent events relating to Saddam Hussein's trial, and explains their significance under international law, which sets conditions as to when a trial can both be, and appear to be, fair. Leavitt contends that the combination of concerns about the rules and composition of the Iraq-based tribunal, the influence of partisan politics in Iraq, and security breaches that have already taken the lives of several defense attorneys, means the trial currently has scant chance of being fair or appearing so to the world. He argues, however, that there is still a chance of the trial's meeting international law's standards if the international community intervenes.
Tuesday, Jan. 24, 2006

The European Investigations of the Claimed U.S. Secret Prison Network and Other Alleged Abuses:
Why Congress Must Investigate, Too, and Why the U.S. Must Accurately Report to the U.N.

FindLaw guest columnist, human rights attorney, and Whitman professor Noah Leavitt discusses European regional and national investigations of Washington Post reports of an international CIA-run secret prison network that may involve sites and flights in European countries. Leavitt argues that these investigations are merely taking a page from the U.S.'s playbook: Given U.S. Ambassador to the U.N. John Bolton's recent statement that Americans will go outside U.N. procedures to resolve global issues if needed, Leavitt asks, shouldn't Europeans be able to do the same?
Monday, Nov. 28, 2005

The Shootings of Saddam's Lawyers: Why the U.S. and the U.N. Should Play a Role in Ensuring the Defense Team's Safety As the Next Tribunal Court Date Approaches
FindLaw guest columnist, attorney, and Whitman professor Noah Leavitt discusses what the Iraqi Special Tribunal, the U.N.,and the U.S. ought to do in light of the fact that three of Saddam's lawyers have recently been shot -- two fatally. Leavitt looks to the Tribunal's constituting statute to consider its duties and powers in this kind of situation. And he argues that this is the time for the U.N. and U.S. to get involved, if the trial is not to fall apart.
Monday, Nov. 14, 2005

Saddam's Upcoming Trial: How Can Justice Be Served?
FindLaw columnist, human rights attorney, and Whitman professor Noah Leavitt puts the Saddam trial in a larger legal, political, and historical context. Leavitt explains the likely effect of yesterday's decision by the tribunal to grant Saddam's attorneys' request for a three-week continuance; discusses how the trial fits into the Iraqi and global political scenes, as well as the history of war crimes tribunals; and notes the criticisms that human rights groups have lodged against aspects of the trial procedures.
Thursday, Oct. 20, 2005

Danger Ahead?: Why America's Governors are Declaring States of Immigration Emergency and Why Congress Should Listen, and Act
FindLaw guest columnist, human rights attorney, and Whitman College lecturer Noah Leavitt reminds readers that, even as the emergency situation caused by Hurricane Katrina dominates headlines, there is another situation that several states have also declared an emergency: Illegal immigration across the U.S./Mexico border. Leavitt argues that Congress must act on this issue, and considers two plans that have been proposed relating to the granting of "guest visas." He cautions, however, that civil liberties of immigrants must be protected, whatever plan is chosen.
Tuesday, Sep. 06, 2005

Why the President Should Not Use A "Recess Appointment" To Make John Bolton the U.S. Representative to the U.N.
FindLaw guest columnist and human rights attorney Noah Leavitt argues that President Bush should not, over this July 4th weekend, use his "recess appointment" power to, without Congress' consent, appoint John Bolton as the new U.S. Representative to the U.N. To support his argument, Leavitt -- who argued earlier that Bolton is unfit for the job -- delves into the larger domestic and international context in which a recess appointment would be made, and into the constitution origins and purpose of the recess appointment power.
Monday, Jul. 04, 2005

Establishing Limits: A Review of Two Books on How Religion and Law Co-Exist In America
FindLaw book reviewer and human rights attorney Noah Leavitt weighs in on two recent books that make different arguments about how to navigate the difficult boundary between our Constitution's Free Exercise Clause, which establishes the right to the free exercise of religion, and its Establishment Clause, which prohibits the government from acting to establish a religion. The books are Kent Greenawalt's Does God Belong in Public Schools? and Marci Hamilton's God vs. the Gavel: Religion and the Rule of Law. As Leavitt explains, Greenawalt and Hamilton take very different views on the Religion Clauses -- a situation all the more interesting because Hamilton's views have evolved from some that were more similar to those Greenawalt still holds.
Friday, Jun. 24, 2005

The REAL ID Act: How It Violates U.S. Treaty Obligations, Insults International Law, Undermines Our Security, and Betrays Eleanor Roosevelt's Legacy
FindLaw guest columnist, attorney, and author Noah Leavitt discusses the controversial REAL ID Act -- which will very likely soon become law. This federal statute will, most famously, require proof of immigration status or citizenship before a driver's license can be issued. But, as Leavitt explains, it will also do a number of other things that will affect immigrants -- including making it more difficult for asylum applicants to prevail. Leavitt contends that a number of REAL ID Act provisions violate either the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights, or both -- even though the ICCPR has been signed and ratified by the U.S., and the Universal Declaration was adopted by the U.N. at the behest of the U.S., led in its effort by Eleanor Roosevelt.
Monday, May. 09, 2005

Can Conservatives Take a Page From Liberals' Playbook And Use International and Foreign Law in U.S. Courts?
John Bolton, Condoleezza Rice, and the Schism Among Conservatives

FindLaw guest columnist, attorney, and author Noah Leavitt parallels two key debates. One is the split between those who would prefer to see weaker international institutions (such as Ambassador to the U.N. nominee John Bolton) and those who counsel U.S. respect and support for such institutions (such as Secretary of State Condoleezza Rice). Another is the split between those who believe it is appropriate to cite foreign law and international law in U.S. courts -- and those who consider the practice anathema. Leavitt argues that it is not inherent to conservatism to oppose international institutions, nor to oppose the use of international and foreign law in U.S. courts. Indeed, he notes that conservatives, like liberals, might benefit from being able to cite international and foreign law sources.
Thursday, Apr. 21, 2005

Is the Bush Administration Repudiating International Law?
Its Withdrawal from the Vienna Convention's Optional Protocol and Other Recent Developments Suggest the Answer is Yes

FindLaw guest columnist, human rights attorney, and author Noah Leavitt discusses a series of recent events relating to a U.S. Supreme Court case that will be argued on March 28. As Leavitt explains, the case raises issues of whether the United States should, or must, abide by rulings of the International Court of Justice. It also asks what should happen if the Vienna Convention rights of death row inmates in the U.S. are found to have been violated. (The Convention guarantees the right to consular assistance; the inmates say their home countries were never told of their arrests.) Now that actions by the U.S. have changed the case's posture, the Supreme Court case is all the more complex.
Monday, Mar. 14, 2005

Global Pressure on the U.N. To Better Address Human Rights Violations:
Why It's Intensifying Now, And Why the U.N. Needs to Listen

FindLaw guest columnist, attorney, and author Noah Leavitt discusses the various pressures the U.N. Human Rights Commission -- and the U.N. as a whole -- face as the Commision's March meeting in Geneva approaches. Leavitt explains that recent scandals are only one aspect of the peril the U.N., and especially the Commission, now face. With notorious human rights violators on a commission that is supposed to punish human rights violating, signs the U.S. may try to bypass the U.N. in favor of direct diplomacy, and regional human rights commissions becoming a viable alternative, Leavitt predicts that only a radically transformed Commission could regain credibility and relevance.
Thursday, Feb. 10, 2005

The Literature of Persecution and Intolerance:
A Review of Two Current Bestsellers That Resonate with American Anxieties in a Post-September 11 World

FindLaw columnist and human rights attorney Noah Leavitt reviews Philip Roth's "The Plot Against America" and Stephen Greenblatt's "Will in the World: How Shakespeare Became Shakespeare." Leavitt argues that the two works, which seemingly very different, have much in common: Both address issues of persecution and intolerance, and address both their tragic cost, and the ways in which individuals can subvert and resist them. This commonality, Leavitt contends, makes the books all the more relevant in a post 9/11 world.
Friday, Jan. 07, 2005

When Nations' Decisions Cause or Intensify Environmental Damage In Ways that Hurt Humans, Is There An International Legal Remedy?
From Global Warming in the North, to Tsunamis in South Asia

FindLaw guest columnist and human rights attorney Noah Leavitt discusses an interesting case brought by the Inuit -- a group of about 150,000 seal-hunting peoples in Canada and Alaska -- before the Inter-American Commission on Human Rights. The Inuit claim that not only are U.S. emissions destroying the environment in which they live, but the result is a series of human rights violations. Leavitt argues that both the facts and the law are on the Inuit's side, and discusses similar cases in which aggrieved parties have argued -- or might be able to argue -- to international forums that environmental damage is also a human rights violation. He also asks: Could this argument be made in connection with the recent, tragic tsunamis?
Saturday, Jan. 03, 2004

The Attorney General, the White House Counsel, and the Sun King:
Why Alberto Gonzales Is Likely to Be Merely a Kinder, Gentler Ashcroft

FindLaw columnist and human rights attorney Noah Leavitt discusses outgoing Attorney General John Ashcroft's record at the Justice Department, and considers how incoming Attorney General Alberto Gonzales might, or might not, differ from Ashcroft. Leavitt focuses, in particular, on Ashcroft's role in church/state debates and post-9/11 terrorism policies -- and predicts what role Gonzales might play when it comes to those issues.
Wednesday, Nov. 17, 2004

Why Election Problems are Human Rights Violations:
A Primer on the International Law Governing November 2

FindLaw guest columnist and human rights attorney Noah Leavitt raises the intriguing possibility that the expected litigation over November 2's election may involve not only domestic, but international law. Leavitt explains the treaties signed and ratified by the U.S. that could apply. He also explains the international monitors who will -- and will not -- be here for the election, and contends that the U.S. should have welcomed more monitors with open arms, to ensure that the world views the U.S. election as complying with the same standards of fairness and justice the U.S. has promised to follow, and encourages others to adopt.
Thursday, Oct. 21, 2004

The Department Of Justice Is Forced to Admit Serious Error in the Detroit "Terrorist Cell" Case:
Judges' Key Role In Curbing "War on Terror" Excesses

FindLaw columnist and human rights attorney Noah Leavitt discusses how three Michigan-based federal judges have played strong roles in making sure justice is done in "war on terror" prosecutions. Leavitt focuses, especially, on the recent Detroit "terrorist cell" prosecution -- in which the Department of Justice, prompted in part by the trial judge's incisive questioning, was forced to ask for the dismissal of a number of convictions. He also discusses rulings by a magistrate judge, and an appellate judge, that he argues were similarly brave and correct.
Wednesday, Sep. 22, 2004

Have America's Anti-Terror Laws Destroyed Individual Rights?
A Review of Elaine Cassel's The War on Civil Liberties

FindLaw book reviewer Noah Leavitt reviews a new book on civil liberties in an age of terrorism, by attorney and author Elaine Cassel (who has also written for this site). Leavitt lauds Cassel's book for its adept explanation and analysis of complex anti-terror laws, court and plea bargaining developments, and law enforcement tactics since 9/11. The book raises provocative questions about whether the recent expansion of executive power will be a permanent one -- and whether the war on terror also encompasses other, far more troubling kinds of wars.
Friday, Sep. 10, 2004

Defining and Redefining "Torture":
In An Argument Before a Federal Appeals Court, the U.S. Government Once Tries to Narrow The Meaning of Torture

FindLaw guest columnist and human rights attorney Noah Leavitt discusses a new chapter in the ongoing controversy over how "torture" should be defined. As Leavitt explains, in a recent federal appeals court argument, the Department of Justice put forth the position that a painless assassination -- one that kills its victim instantly -- should not count as torture. While the court did not reach the issue, it warned the government that even a painless assassination could count as torture in some circumstances -- such as if the victim suffered mental pain through fear or anticipation of the assassination. Leavitt argues that the government should adhere to the already-existing legal definition of torture -- and if it does not, Congress should step in.
Tuesday, Aug. 24, 2004

Could America Lose Its Identity in Its Fight Against Al Qaeda?:
A Review of Michael Ignatieff's Lesser Evil: Political Ethics in an Age of Terror

FindLaw book reviewer and human rights attorney Noah Leavitt reviews Harvard professor Michael Ignatieff's recent book on how democracies should cope with terrorism, how they do cope with it in practice, and how they can both address terrorism, and retain civil liberties. Leavitt focuses, in particular, on several major prescriptions of Ignatieff's: Retain judicial review, maintain a climate of openness, and never resort to torture. Leavitt argues that the Bush Administration has violated each of these prescriptions.
Friday, Jun. 25, 2004

Is Oklahoma A New Human Rights Hot Spot?:
Why The State's Judges and Governor Were Right To Stop An Execution that Nearly Violated International Law

FindLaw columnist and human rights attorney Noah Leavitt tells the extraordinary story of the progress of a death row inmate's claims before the U.S. Supreme Court, the Oklahoma courts, the Oklahoma Board of Parole, and the Oklahoma Governor. As Leavitt explains, the most striking aspect of the whole story is that Oklahoma was ahead of even the U.S. Supreme Court in accepting that because treaties are U.S. laws, the U.S.'s violations of treaty rights should be taken very seriously. Here, the relevant right was the right of a noncitizen criminal defendant to have assistance from his country's consulate.
Monday, May 24, 2004

International Human Rights Violations Here in the U.S.:
A U.N. Visit to Chicago's Cabrini-Green Housing Project

FindLaw guest columnist and human rights attorney Noah Leavitt discusses a growing trend in the U.S. of arguing that international human rights are being violated right her at home. Attorneys are increasingly arguing that the U.S. should take its treaty obligations seriously. Leavitt focuses on a visit from Miloon Kothari -- the United Nations Special Rapporteur on Adequate Housing -- to residents of Chicago's notorious Cabrini-Green public housing project. The residents asked Kothari to come because they argue their right to housing has been denied, and they have been left homeless.
Tuesday, May 06, 2004

South Africa's Grant of Asylum to Aristide
A Mistake that A Haitian Truth and Reconciliation Commission Might Partially Remedy

FindLaw guest columnist and human rights attorney Noah Leavitt takes issue with South Africa's recent decision to grant asylum to alleged human rights violator and former Haitian President Jean-Bertrand Aristide. Leavitt contends that South Africa has seriously marred its own record on human rights with this decision -- but that it could partially remedy its error by urging that Aristide face a Truth and Reconciliation Commission in Haiti that would be similar to South Africa's own such Commission.
Monday, Mar. 29, 2004

New U.N. High Commissioner For Human Rights Louise Arbour
The Issues She Should Focus On Now, From Abusive Counter-Terrorism Tactics to Rights Violators Who Are Members of the Rights Commission

FindLaw guest columnist and human rights attorney Noah Leavitt offers some very specific suggestions as to the agenda that new U.N. Human Rights Commissioner Louise Arbour should pursue. Leavitt discuss why Arbour's predecessor, Mary Robinson, was successful, and explains why the situation Arbour will face is especially challenging, with some human-rights-abusing countries influencing the U.N.'s human rights agenda. He also explains why Arbour's background suggests she is generally well suited for the job.
Monday, Mar. 08, 2004

John Ashcroft's Subpoena Blitz:
Targeting Lawyers, Universities, Peaceful Demonstrators, Hospitals, and Patients, All With No Connection to Terrorism

FindLaw guest columnist and human rights attorney Noah Leavitt discusses two sets of subpoenas recently issued by the Justice Department. One set sought documents relating to peaceful antiwar demonstrators at the University of Iowa. The other set sought women's abortion records, in an attempt to use them to defend the Partial Birth Abortion Ban Act. Leavitt argues that these subpoenas undermine the argument that the Administration has used -- and will always use -- its new, broad powers only against suspected terrorists, and never against innocent persons unconnected to terrorism.
Wednesday, Feb. 18, 2004

Is it Always Torture to Dismember and Eat a Conscious Human Being?
Possible International Human Rights Claims in the German Cannibalism-by-Consent Case

FindLaw guest columnist and human rights attorney Noah Leavitt offers a novel perspective on the infamous German case in which a man solicited a willing cannibalism victim on the Internet -- and then dismembered him (while he was still conscious), ate his body parts, and finally killed him. Leavitt explains why German prosecutors have had a difficult time in finding sufficiently serious charges to file against the killer -- whose actions may technically count as illegal euthanasia, rather than murder. And he suggests why anti-torture provisions of international human rights law may provide more fitting justice for the killer's crimes.
Thursday, Jan. 08, 2004

An Imperfect, Courageous Attorney:
A Review of A Book By the Lawyer Who Defended the 1993 World Trade Center Bomber

FindLaw book reviewer and human rights attorney Noah Leavitt reviews an unusual lawyer's memoir by Robert Precht, who defended one of the men implicated in -- and later convicted in -- the 1993 bombing of the World Trade Center. As Leavitt explains, Precht's memoir, unlike many other lawyers', is more self-castigating than self-complimentary; it bravely explores the emotional and psychological difficulties in representing someone accused of such a heinous crime, and also admits the way careerism can affect a lawyer's representation of his client.
Friday, Dec. 19, 2003

How The U.S. Supreme Court Recently Refused to Enforce U.S. Law,
and Insulted the International Court of Justice

FindLaw guest columnist and human rights attorney Noah Leavitt discusses a recent denial of review by the U.S. Supreme Court in a death penalty case. The case involves an alleged breach of the Vienna Convention on Consular Relations -- specificially, a Mexican national on death row claims that, when arrested, he was not told of his right to consult with the Mexican consulate for help, including help with finding an attorney. Leavitt contends that, for a number of reasons, the Court should have granted review in this case -- as Justices Breyer and Stevens argued in their dissents from the denial of review.
Thursday, Nov. 20, 2003

Legal Globalization
Why U.S. Courts Should Be Able to Consider the Decisions Of Foreign Courts and International Bodies

FindLaw guest columnist and human rights attorney Noah Leavitt discusses a controversial development going on in American courts: The increasing tendency of lawyers to reference, and of courts to consider, decisions of international bodies, and even of other countries' high courts. Leavitt both explains and defends the trend, and cites three Supreme Court cases from last Term that illustrate it.
Thursday, Oct. 16, 2003

Could a "Material Support" Treaty Reduce Suicide Bombings?
How The U.S.'s Reluctance To Support Such a Treaty Will Harm the War on Terrorism

FindLaw guest columnist and human rights attorney Noah Leavitt discusses a crucial gap in international law: The lack of a treaty addressing the problem of those who provide material support to suicide bombers. Leavitt explains why the gap exists, and details Israel's recent attempt to press for a treaty that would fill that gap. He also explains why the U.S. has not joined the push for such a treaty -- and why he believes that it should.
Tuesday, Aug. 26, 2003

Understanding America's Obligations in Africa's Newest Trouble Zone:
The Representations the U.S. Made, and How Liberia Relied on Them

FindLaw guest columnist and human rights attorney Noah Leavitt describes the obligations the U.S. may have incurred as a result of its longstanding relationship with Liberia. While the fact that freed African-American slaves settled in Liberia is well-known, Leavitt details many other mutual bonds between the two countries that have occurred since then. He also explains, drawing on a contract law concept, why such bonds arguably place a duty upon the U.S. to intervene in the current crisis in Liberia.
Thursday, Jul. 24, 2003

Peru as Our Crystal Ball?:
One Possible Future for America's War on Terrorism, And the Lessons That Can Help Us Avoid It

FindLaw guest columnist and human rights attorney Noah Leavitt argues that the U.S. can draw important lessons from the experiences of other countries that have fought terrorism in the past. In particular, Leavitt focuses on Peru, which violated international due process concepts in order to go after the Shining Path and similar terrorist groups. Leavitt chronicles both the Peruvian government's excesses, and the reason they are finally being remedied.
Thursday, Jun. 05, 2003

Slowly Sowing Justice in the Killing Fields:
A Problematic Tribunal for Cambodia Has Lessons for Post-Saddam Iraq

FindLaw guest columnist and human rights attorney Noah Leavitt discusses the long, troubled history of attempts to create tribunals to mete out justice for 1975-79 Khmer Rouge atrocities in Cambodia. Leavitt also reflects on what lessons these controversies may teach when it comes to similar questions about the anticipated war crimes tribunals in Iraq.
Thursday, May 22, 2003

From Michigan to Mosul:
Can U.S. Constitutional Affirmative Action Principles Inform the Way Group Identity Is Addressed In Iraq?

FindLaw guest columnist and human rights attorney Noah Leavitt makes a provocative parallel between the Bush Administration's attitude towards diversity in the U.S. -- specifically, in the University of Michigan affirmative action cases currently before the Supreme Court -- and its attitude toward diversity in Iraq. Leavitt considers questions such as: Should the Administration recognize claims of group identity and group rights in Iraq? What does "diversity" mean in the U.S., and in Iraq?
Wednesday, Apr. 23, 2003

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