In great style, Steven Donziger announced some news yesterday, the day before his sentencing for criminal contempt of court, announcing an opinion from the Working Group on Arbitrary Detention.
Wow, the UN has ruled that his house arrest violated international law? The decision obligates Judge Preska to release him? Well, not quite.
The Working Group on Arbitrary Detention, a group established by the Human Rights Commission in the early 1990s made up of five legal scholars, received a statement of the case from Amnesty that no one bothered to contest, perhaps because the opinions of the Working Group have no legal force. Based on Amnesty’s statement of the case, the Working Group opined that Donziger’s home confinement was contrary to the Universal Declaration of Human Rights and the ICCPR. I am not going to go through the lengthy submission Amnesty made and provide counterpoints, but I will suggest that anyone who has knowledge of the case and who reads the record the Working Group relied on in reaching its opinion will conclude that it is, overall, hardly a fair statement of what happened in the litigation. I have to say that in my view opinions like this cheapen international human rights law and bring it into disrepute as an enterprise. In a world filled with real cases of arbitrary detention, and real and serious human rights abuses, it seems crazy to me to treat Donziger’s case in this way. With that said, as I’ve written before, while there were reasons to regard Donziger as a flight risk, e.g., his initial failure to surrender his passport and his possession of a second valid passport), given the minor nature of the charge and the short maximum sentence, I don’t think that the case warranted pretrial home confinement. On the other hand, Donziger took an appeal on the issue to the Second Circuit and lost.
What do I think will happen at the hearing? I can see it going one of two ways. My best guess is that the judge is not going to sentence Donziger to spend time in prison. As I’ve written before several times, I think he has been punished enough, not just by the home confinement but by his disbarment. My best guess is that is what the judge will think, too, though I could be wrong. On the other hand, I can imagine either Donziger himself or his lawyers expressing real defiance in court, perhaps insisting that he has no remorse, that he doesn’t feel there was a lesson here for him to learn about obeying court orders, etc., which could provoke the judge. I would never suggest that Donziger sees some PR benefit in being sent to prison, but he is a bomb-thrower who may want to throw some rhetorical bombs tomorrow. In short, I doubt this will be a typical federal criminal sentencing hearing.
Assuming the phone lines are not overwhelmed, I will be dialing in for the hearing, beginning at 10 a.m. EDT, and will be live-tweeting at least part of it @tedfolkman. Please join me on Twitter for this major milestone in the long running saga!