Alleged international law norm barring detention based on investigations triggered partly by national origin or alienage

[Francisco Forrest Martin]

Prof. Volokh wrote: "I also appreciate Prof. Martin's cites; do they specifically say that the government may not discriminate based on the country of an alien's citizenship?  Or do they just prohibit discrimination based on "national origin" in the sense of the ethnicity of one's forbears?  At this level of generality, the international law supposedly violated by the Administration's policy remains, as the subject line suggests, merely "alleged" and not really supported."

I guess the best cite that comes to mind is a UN Human Rights Committee case (Hill v. Spain) concerning a foreign national's right to liberty in which the Committee held that the fact of the authors' foreign nationality alone could not bar them from pre-trial release for an arson charge.

Prof. Volokh continues: "More broadly, I believe there was an allegation made about a specific person:  That Mr. Gonzales is essentially an incompetent lawyer ("Is this the best that the White House can get for legal counsel?").  The allegation was originally based on the theory that "this kind of discrimination [is] outrageous and clearly illegal," but then apparently was changed to the theory that the "statement was a disservice to his client," apparently because it implicated the U.S. in a violation of international law.  The allegation, just like the allegation about President Bush's supposed current or imminent war crimes (in the thread that started with Prof. Martin's post with a subject of "Impeachment for War Crimes"), at this point appears to be unproven.  It seems to me that Prof. Martin ought to either withdraw the accusation of Mr. Gonzales' incompetence or provide some specific evidence, beyond just the broad statement that international law bars discrimination ba!
sed on national origin, that supports it."

Prof. Volokh mistakenly states that I accused Mr. Gonzales of incompetence.  I never have.  It was and continues to be my belief that White House Counsel should not have made statements that strongly indicate unconstitutional motives for arresting thousands of persons and clearly indicated illegal motives under the U.S.' international law obligations.  I believe that I may have used the word "stupid" in reference to Gonzales' statement (and I somewhat regret this impoliteness), but mere stupidity does not necessarily rise to the level of incomptence.

As for my argument that the Bush military order if implemented would subject Pres. Bush to impeachment and conviction under the War Crimes Act as a matter of law (not necessarily fact, obviously), I believe that I have proven my case by providing the requested legal authorities.  I don't expect Prof. Volokh to agree with me (he rarely does).

Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law