Free Directed Verdict by Randy Singer Page B

his part, Brad was growing weary of the bullying. He was always one to cheer for the underdog. Especially an underdog as pretty as Leslie.
    “That’s not exactly the way I would phrase it,” Leslie said. “There are important foreign policy reasons—”
    “Counsel,” Brad said, coming to the rescue, “did you write this law? Justice Strobel seems to think you did.” He shot a sideways glance at Strobel. No love lost there. “Last I checked, Congress wrote the law, and it was the job of courts like this one to apply it.”
    Leslie looked relieved to get a pitch she could actually hit. “Congress had to balance numerous important factors in drafting the Foreign Sovereign Immunities Act. There are delicate foreign policy issues at stake—there is a new regime in Afghanistan, put there by our own country, and that regime should not be undermined and held accountable for the actions of the Taliban. Plus the governments of other countries must be respected by the courts of the United States, or those other countries will reciprocate by hauling the United States into their courts as a defendant. The role of this court today is not to question the wisdom of the Sovereign Immunities Act passed by Congress, but to apply the law even if we don’t necessarily like the result.”
    Brad looked at Strobel and nodded.
    “The court should not open this can of worms,” Leslie concluded. “Otherwise, plaintiffs’ lawyers will clog our courts with all manner of bogus claims against foreign governments, just trying to get lucky and hit it big.”
    Brad winced. Now Strobel smirked.
    Brad was fully engaged. The game was clear: it was Brad against Strobel, head-to-head. The litigants were just allies—pawns to move around the chessboard. Brad thought it worked out nicely to have the attractive one on his side. Strobel could have the drill sergeant.
    “You are aware, Counsel—” Strobel’s voice boomed again—“that all civilized nations acknowledge certain generally accepted principles of international law?”
    “Yes. These fundamental principles and values common to all mankind are called jus cogens laws and are considered binding.”
    “These are the highest forms of international law, is that correct?”
    “Yes, they are.”
    Brad leafed through his materials for a copy of the Foreign Sovereign Immunities Act. He could not put his finger on it, but this moot court argument was giving him a strange sense of déjà vu.
    “And one of those norms widely recognized as a jus cogens norm is the right of people everywhere to be free from torture at the hands of their own government, right?” Strobel asked.
    The trap was set. Brad could see it about to snap.
    “Basic human rights, such as the right to be free from torture, would be considered jus cogens laws,” Leslie admitted.
    A mirthless smile formed on Strobel’s lips. “Well then, if a nation violates a basic human right, like the right to be free from torture, they have violated one of the most basic tenets of international law. Shouldn’t a nation that breaks one of these most basic tenets of international law, a jus cogens law—” Strobel let his deep Southern drawl lengthen the phrase like some religious incantation—“by torturing and killing its own citizens be seen as waiving the protection of sovereign immunity?”
    Strobel leaned forward, elbows on the bench, waiting for an answer. The phrase jus cogens , majestically Latin in its origin, seemed to echo around the courtroom.
    Leslie cleared her throat. “If we start weighing violations of international law and decide that some violations are worthy of the protection of sovereign immunity while others are not, then we will find ourselves in an ambiguous area. If nothing else, international law requires certainty and predictability—”
    “But aren’t we already making exceptions?” Strobel insisted. “It’s just that now we make exceptions for commercial cases, and I’m suggesting that the far