Bonus Episode on Iran!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Thomas: Hello and welcome to Opening Arguments. This is a bonus episode. There is no number. I'm Thomas, that's Andrew, and also with him is Andrew's dog, which you will probably hear because this is a live, unedited, get-it-to-you-as-fast-as possible bonus episode. So how are you and your dog? Oh,

0:00:20 Andrew: Yeah, we are fantastic. Also, don't forget it's the holidays, so for another day or two, Blasto is still here, so there are actually two dogs, one of whom is 900 pounds, so yeah. Yeah. Yeah.

0:00:29 Thomas: Two dogs, Blasto, It is

0:00:37 Andrew: So, yeah.

0:00:37 Thomas: A, uh, Blasto, did, I'll never forget, uh, it was at the New York show when, uh, all of a sudden there was a, there's a moose on stage with us, and I was like, hey, Andrew, I don't, don't want to alarm you during this live show, but there's, uh, there's the moose on the stage, and He Said, oh, that's Blasto, who is apparently a dog, roughly

0:00:51 Andrew: Yeah, yeah, yeah Moose is the first because it's an it's an antlerless moose.

0:01:00 Thomas: Don't want to alarm anyone, but there seems to, I don't know if there's a zoo nearby, there's an escape, and

0:01:01 Andrew: Yeah, Yeah, Usually The comparison is bear, but but you know

0:01:06 Thomas: Yep, I might have said bear, but I thought, I thought moose would be funnier, I'm here to bring the comedy, so, and

0:01:14 Andrew: Right, when he rears up, um, he's, uh, he can put his paws on my shoulders, um, and, uh,

0:01:23 Thomas: You're seven foot three, so that's that's a tough one.

0:01:23 Andrew: Yeah, And I, right, Yeah, and I used To play center for the Lakers, as everyone knows who listens to the show, so all right, anyway, world's on fire, puppies are cute, but, um, yeah, let's, uh, let's do this

0:01:30 Thomas: All right, let's get to our bonus Yep, let's get to our bonus questions. These were, of course, at patreon.com/law. That's where we allow our VIPs to ask Andrew all the tough questions. So as I teased in the last episode, I'm going to do it again. I'm gonna read it again. P. Andrew Torrez brings enough evidence to moo the noodle. Great patron name, double shout out. They ask, so targeting historical sites, is it really a war crime? And what are the unit, yes, and, uh, sorry, what are the U.S. and international remedies? I know that was probably condensed a little bit, but that was the thrust of the question. So what do you think? It

0:01:36 Andrew: Yeah, This was, I'm glad this was the, the first question because, um, this really gives us an opportunity to answer an umbrella of a lot of questions, which is sort of, what's international law? How has Trump violated it? What can we do about it? And I'm ready to do kind of a, kind of a not even a mini, an actual deep dive on, on all of those questions. First, let's quote our president, quote, "They're allowed to kill our people. They were allowed to torture and maim our people. They were allowed to use roadside bombs and blow up our people, and we're not allowed to touch their cultural sites. It don't work that way." Um, that is our, yeah, yeah, I was, I was trying to channel more Trump than Joe Montana, but, um, yeah, there's a little bit of overlap there, um, that, anyway, not a thing.

0:02:55 Thomas: Was either Trump or Fat Tony from The Simpsons, I'm not sure. Which most good answers start like that.

0:03:12 Andrew: Yeah, yeah, that is that is every organ in my body trying to strangle my brainstem simultaneously. So that's a horrible, gross and stupid thing for a president of the United States to say. Is it also an illegal thing? And, again, the answer, as with everything involving our corrupt game show host of a president, is yes, but is you have to ask two questions, right? You have to asked, is this a violation of the law, right, hashtag clear as Kushner,

0:03:14 Thomas: Yeah, where do I start, yeah.

0:03:46 Andrew: And then, but what, yeah, what can we do about it, right. So let's talk about that. First, this is very plainly a violation of the law. And I want to unpack exactly what that is. You've seen this in some media places, but I don't know that the reporting has been great. And, and I want to explain precisely sort of the, internet, the interaction between international law and U.S. law. Right.

So the United States and Iran are both signatories to and have domestically ratified the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. That is the full name of the treaty. Right. Like there are lots of Hague Convention treaties because, you know. And so, so that's the full name of the treaty. That treaty has both in its purpose and in its actual implementation prohibitions on exactly what Donald Trump did.

So, in the preamble section, the purpose of that treaty is, quote, "Recognizing the cultural property has suffered grave damage during recent armed conflicts," against 1954. So basically what that means is, right, Nazis carrying off French treasures, right?

"And that by reasons of the development of the technique of warfare, it is an increasing danger of destruction, being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world, being determined to take all possible steps to protect cultural property." OK, so that's the, those are the purpose of clauses, right? The whereas clauses. So what does the treaty do? First, it defines cultural property.

And this is the most expansive definition possible, right. Right. It says, "Movable or immovable property of great importance to the cultural heritage of every people, such as monuments, architecture, art, history, whether religious or secular, archaeological sites, groups of buildings, which as a whole are of historical or artistic interest, works of art, manuscripts, books," other, another, I'm not even going to continue to define, I'm going to tell you, this is a lawyer tasked with coming up with language like "in perpetuity, throughout the universe," describe everything that could remotely be considered of interest to anyone ever, and lawyers are good at coming up with long lists of that, and that's what they did, and then, and including the buildings and centers and things around it and everything else.

Then the enforcement is crystal clear, and it likes being clear. Article 4 is respect for cultural property, and subsections 1 and 4 provide the specific international agreements which Donald Trump has expressly violated. Number one, signatories to the treaty, quote, "Undertake to respect cultural property by refraining from any act of hostility directed against such property," end of quote. That's super clear. Number four, "They shall refrain from any act directed by way of reprisals against cultural property." Also really clear.

So you take those together, that means you can't target historical cultural sites. And if you happen to suffer loss to one of your historical cultural sights, you can't target one of theirs in response. Donald Trump explicitly, and, and the targets that, that Trump included

0:03:47 Thomas: And and then I ask, but will it matter, matter, Yeah, it's almost

0:07:50 Andrew: Included

0:07:50 Thomas: Like he used the statute to make sure, as a blueprint, to make sure his tweet was violating international law. It's like, hold on, let me make sure I got all the components, uh, let's see, intent, uh, cultural heritage, all that crazy, yeah,

0:07:51 Andrew: Yeah, yeah, yeah, and it kind of reminds me, I've made the joke on the show before, but, yeah, it is almost the, like, Beavis and Butthead wearing the wire, like, "We were going to exchange goods or services for sexual favors," right, like, I mean, yeah, yeah, that's an excellent point.

0:08:21 Thomas: Well you're a lawyer So you make the Beavis and Butthead reference, but I'll make a smart legal, legal reference, it's like a bar question that is patterned after this statute, it's like, you, this is, these are the facts, and then the lawyer is like, well, okay, very clearly they're trying to reference or get me to, I'm issue-spotting this exact statute.

0:08:31 Andrew: Right. Yes. Right. That is such a much better analogy. This is that's what I love about the show.

0:08:42 Thomas: That's cool, it's just a little role reversal, it's fine, it's fun, it's

0:08:47 Andrew: Yeah. So, OK, this is clear as Kushner. Then what can be done about it? And I'm going to go through four things here. There are three things that you would think would mean that it would be enforceable, and those three things are, number one, the Constitution, number two, the International Court of Justice, and number three, the International Criminal Court. And spoiler alert, I'm going to tell you why none of those three things matter. And along the way, we're going to pay a visit to a good friend of Opening Arguments, Ted Cruz.

0:09:26 Andrew: But then in number four, I'm going to tell you what I think may stand in the way. And I'm very excited about all that. So first, let's look at the plain meaning of the ordinary text of the Constitution. Article six. And again, know, like once you get past Articles one, two and three, like Article one sets up the powers of Congress, Article two sets up the powers of the presidency, Article three sets up the power of the judiciary, and beyond that, like, is when people start falling asleep, Article six is one of those, you know, bonus sections at the end of the Constitution, it's Flyover, Constitution. Right, Section Two says, and again, if you're a textualist, if you say we interpret laws and constitutional provisions by the plain meaning of the ordinary language therein, I want to read this to you: "The Constitution, comma and the laws of the United States, which shall be made in pursuance thereof; semicolon and all treaties made, comma or which shall be made, comma under the authority of the United States, shall be the supreme law of the land, and

0:10:04 Thomas: Flyover Constitution. I didn't know that

0:10:42 Andrew: The judges in every state shall be bound thereby, in anything in the constitution or laws of any state to the contrary notwithstanding." Right, so I do not know, I would love, maybe we'll get our buddy Seth Barrett Tillman back on the show, I do not understand how, if you are a textualist, if you are, and by that, that is a sub flavor of originalism, right, if you think that what you do is you figure out what the words mean as the initial guidance, and that the, the way in which you interpret that is sort of by reference to what they meant.

First, you look at, there's a sub flavor of textualism that says we don't do any historical analysis at all. Right. Like if the statute says you don't drive over 35 miles an hour, you know, you don't say, well, what does 35 mean? You just, if a statute is capable of plain meaning, right, and this is a constitutional provision, statute just means law, but but if a constitutional provision is capable of plain meaning, then it means what it says.

Right, we assume different people may have different reasons for ratifying it, but you don't go looking for reasons for things that say don't give over 35 to mean, well, really, you can go 50. Right, I would love to know from somebody who holds that position how treaties shall be, quote, "the supreme law of the land," does not mean treaties shall beat the supreme law of the land.

I understand how I get there, and the way in which I get there, and and and by the way, like I'm not saying I I endorse fully this position, but but the way in which anybody gets to "treaties shall be the supreme law of the land" does not mean treaties shall be the supreme law the land is through stare decisis, right, is

0:10:42 Thomas: Yeah

0:12:38 Andrew: Through what the Supreme Court has interpreted, um, we have a Supreme Court with four plus members on it who have said it doesn't matter what some dumb Supreme Court said in 1834, what matters is

0:12:54 Thomas: Or by the way, 1997 or you know, 2012 yeah so

0:12:55 Andrew: Yeah, yeah right, yeah last week, right yeah, all that matters is what is the plain meaning of language, if, if that is your heuristic, um, you know, right into the show, because I would, I would love to know how you get through that.

0:13:11 Thomas: According to originalists, Trump should be, I mean, this is clearly well I mean I suppose it was a threat, um, he didn't do it, so but it was, is there anything in that well maybe we'll get to that later, I don't know

0:13:14 Andrew: Yeah, this is it's it's clear. This was. Yeah. Yeah, no, if if it look like let's let's remember the it's why I read section one, right? Right. Refraining from any act of hostility directed against such property, saying we're going to bomb Persepolis is clearly a violation, whether you bomb it or not. Right. Like it's it's hostile to threaten to bomb something. Right. I think that's pretty clear. Um, I'm going to, yeah.

0:13:53 Thomas: Well yeah and and I'm sorry to, sorry to bring this up, but like, I I messaged you and I saw someone share on my page, outrage, the idea that it's, it's entirely possible, now I'm not, you know, we, we don't know for sure, but it's entirety possible that the reason that plane was shot down in Iran was because Hannity was on TV, make at that time, claiming that there were bombers on their way to Iran. Of

0:14:20 Andrew: Um, it, it and let's be super careful about that. Right. Because I did research that for this episode. There is a tremendous amount that we don't know about the the downing of the Ukrainian passenger liner, um, but yeah

0:14:31 Thomas: Course. Yeah. We'll, we'll talk about that later. I just brought it up as the point of making these threats are not, these don't happen in a vacuum, you Know? Yeah. The president saying I'm gonna do something could, could possibly hypothetically cause something like that, like, oh shoot, what is that craft coming out, you know, and then they fire a rocket at it and it turns out it's passenger jet, not saying we know that's what happened, but it's just to prove the point that that these, these words matter, these threats aren't just empty threats, they're from the president of the United States and they have a real effect on people's lives, yeah

0:14:39 Andrew: Yeah yeah words words matter, yeah it yeah I I totally agree with that, um, I want you to put a pin in "treaties shall be the supreme law of the land," uh, because the same case law that differentiate it explains that that does not mean treaties shall be the supreme supreme law of the land, is is also the case law that explains around this sort of point number two, which is the International Court of Justice, and and again, this is one of these things where you would look at the plain language of the treaty and say, looks pretty obvious to me, so the International Code of Justice is found in Article 94.1, 94 subsection 1 of the UN Charter. Right. This was ratified in 1945. The United States is a signatory to the UN Charter. Right. We're a charter member of the United Nations. Article 94.1 provides that, quote, "each member of the United Nations," which includes the U.S., "undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." OK, that seems super straightforward.

0:16:27 Andrew: Right. A state goes to the International Court of Justice and says, hey, Iran, for example, United States agreed to be bound by the International Courts of Justice, they agreed to be bound by the 1954 Hague Convention, they just threatened our cultural sites, we want a determination that that is a violation of their treaty obligations, and we want relief, right, um, and states have done this, and I'm here to tell you that up until, until 2008, there was, to some degree, a bit of an open question about whether foreign states could get relief in the International Court of Justice with respect to disputes against the United States.

Now, there were plenty of counterexamples, right? In the 1980s, the United States mined Nicaragua's harbors, and Nicaragua went to the International Court of Justice and got a declaration that that violated international law, and the United States did nothing about it.

But I want to tell you, there is a case that is much, much worse, that was, in fact, 6-3 before the Supreme Court, that there was a chance, there is an non-trivial, in my mind, a very, very good argument the other way, um, and that, that case, uh, unfortunately, because of way that it went, um, is in my view dispositive of these first two points, um, and uh, and and and so let's let's unpack that case, this, I think, would be good, dividing line point, so I

0:16:27 Thomas: Perfectly clear so What you're saying is, as much as we kind of caved and wanted to give everybody on the main feed some info, we're going to hop on over, we're gonna keep our word and make the rest of it a bonus show, is that what you say? All right Well, sorry everybody, we, if anything, we caved, we want to give you a little more for the main feet, but we are going to do what we said we were going to and hop on over to patreon.com/law to finish the rest of this, what is turning out out to be a very girthy dive, I'll say. It's not a thin dive, not a shallow dive. This is a substantive dive. So we're going to continue that. Thanks, everybody, for listening. If you don't want to hop on over, that's a-okay. We just wanted to give you a little more on the main feed and we'll see you on Tuesday. But for everybody else, we're gonna continue the discussion.

0:18:36 Andrew: Think I think that's right let's do that