Thursday, December 30, 2010
Sunday, December 26, 2010
Saturday, December 25, 2010
Sunday, December 19, 2010
Sunday, October 10, 2010
Saturday, October 9, 2010
Sunday, September 5, 2010
Friday, August 27, 2010
Thoughts on reading Steve Coll's Ghost Wars (2004): It's clear from this book that Afghanistan is a place we ignore at our peril. It's also clear that this is a most unhappy land: Coll's 576-page narrative covers less than 25 years of Afghanistan's history, from roughly 1979 to 2001.
But the book, subtitled The Secret History of the CIA, Afghanistan, and Bin Laden, from the Soviet Invasion to September 10, 2001, also makes clear that we have been locked in struggle with Osama bin Laden since years before 9/11. As early as 1998, it seems, President Clinton signed a secret "Memorandum of Notification (MON)" which "authorize[d] the CIA or the Pentagon to shoot down bin Laden's helicopters or airplanes under certain circumstances. There was no pretense in this MON that bin Laden would be captured for trial." (427) Earlier in 1998, we had very seriously considered, but ultimately rejected, a plan for Afghan fighters to try to capture bin Laden at "Tarnak Farm," a compound near Kandahar where family members lived and he periodically visited. Jack Goldsmith, in his book The Terror Presidency (2007) (which I'll have more to say about in a future post), writes that "the Office of Legal Counsel in the Clinton administration secretly concluded in the 1990s -- as a prerequisite to its efforts to capture and if necessary kill Osama Bin Laden -- that the United States was in an armed conflict with al Qaeda.
But these efforts failed, and not long after the decision not to attack Tarnak Farm, bin Laden's agents successfully bombed US embassies in Kenya and Tanzania. (And we in turn attacked what we believed were Al Qaeda targets in Afghanistan and Sudan with cruise missiles.) It's worth emphasizing that the embassy bombings were only a small part of the overall effort bin Laden had come to lead. One reason to reject a war paradigm in favor of a crime paradigm in dealing with terrorism is that particular terrorist attacks may be mounted by just a few people, as was the case on 9/11, and so they can have the feel of crimes rather than military assaults. But bin Laden was leading a large operation/movement, training volunteers, financing attacks, binding Afghan's Taliban to him, and aspiring to reshape the life of countries in the Middle East and Central Asia. In 1998 he and others had declared in a manifesto that "[t]he judgment to kill and fight Americans and their allies, whether civilians or military, is an obligation for every Muslim who is able to do so in any country." (381) It seems to me that it's precisely for threats of such magnitude and reach that a military paradigm is designed.
The judgment that an attack on Al Qaeda required an attack on the Taliban also seems supported by this book. It is true that Taliban leaders may have sometimes professed an intention to disentangle themselves from Al Qaeda (notably, in a meeting between the Taliban's Mullah Omar and Saudi intelligence in June 1998 (described by Coll at 400-02). In fact many US policymakers spent years advocating and seeking connection with what we hoped were potentially moderating forces among the Taliban. But by 2001 we had had long experience in trying to bring about this disentanglement, and I think we had strong reason to believe that it would never take place. In fact, an al Qaeda plot killed Ahmed Shah Massoud, the strongest Afghan leader opposed to the Taliban, on September 9, 2001: bin Laden struck for the Taliban, and against the United States, in what must then have seemed to him a triumphant series of days.
It is unfortunate that in retrospect we also had strong reason to believe that Pakistan would never sever its connections with the Taliban either. Pakistan's connections with Afghan Islamist forces had been made long before 2001, and rested, it seems, both on religious conviction and realpolitik calculations driven in particular by Pakistan's anxiety about Indian power. It is not surprising that Pakistan's role remains as ambiguous as it does, as this week's report that Pakistani arrests of Taliban leaders early in 2010 were actually meant to block the progress of peace discussions independent of Pakistan's direction reflects. Dexter Filkins, "Pakistanis Tell of Motive in Taliban Leader's Arrest," New York Times (August 22, 2010). Saudi Arabia, too, proves in this book an endlessly troubling ally.
Finally, one overall perspective: in the world of "ghosts," little is as it seems. Governments move in secrecy, from their own people and from each other. What you see is not necessarily what you get, and particularly for members of the general public, understanding the true course of events may never be entirely possible.
Friday, July 23, 2010
Saturday, July 10, 2010
Humanitarian Law Project and deference to the political branches in foreign affairs -- the majority's view
So what does Humanitarian Law Project say about the degree of deference to be paid to the political branches in deciding whether the law prohibiting material support to designated foreign terrorist organizations can be applied to speech?
Chief Justice Roberts’ opinion for the Court does not begin by invoking deference. Instead, at pages 24-28, he examines in some details the reasons why, in his judgment, the statute’s view that at least some forms of speech amount to material support is correct. One can disagree with his analysis, but as presented it is indeed his (and the majority’s) analysis. It’s of some importance, I think, that Justice Roberts begins this way.
His next step, however, is to explain why “we do not rely exclusively on our own inferences drawn from the record evidence. We have before us an affidavit stating the Executive Branch’s conclusion on that question,” a conclusion “‘strongly suppor[ting]’ Congress’s findings that all contributions [including nonmonetary contributions] to foreign terrorist organizations further their terrorism…. That evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference.” (28-29)
But it is important to emphasize that Chief Justice Roberts does not assert that complete deference is called for. “It is vital in this context ‘not to substitute … our own evaluation of evidence for a reasonable evaluation by the Legislative Branch,’” he writes, quoting an earlier decision. Deference is owed not to any evaluation, but to reasonable ones. Roberts writes that “[w]e are one with the dissent that the Government’s ‘authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.’” (29) And later he declares that, “At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization – even seemingly benign support – bolsters the terrorist activities of that organization. That judgment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it.” (31) This too is the language of measured rather than complete deference.
What, concretely, does all this mean? For Chief Justice Roberts, an important part of the answer seems to be “that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess. The dissent slights these real constraints in demanding hard proof – with ‘detail,’ ‘specific facts,’ and ‘specific evidence’ – that plaintiffs’ proposed activities will support terrorist attacks.” (29) Here, I think, we are at the crux of the matter: the government’s judgments emphasize potential risks not specifically demonstrated, and the question is what to do about these possibilities.
This is the problem of the one-percent doctrine (though I am not saying that the Supreme Court majority embraced that extreme idea): what should we do when we’re not sure? The one-percent doctrine stated that we would treat essentially every risk as equivalent to certainty. As I’ve written in a previous post, that idea didn’t really make sense even in command decisionmaking. Nor would it make sense in law, where a great deal of effort has gone into trying to fashion standards for decisions about the meaning of uncertain evidence.
Broadly speaking, the First Amendment response to uncertainty has been that when we regulate speech because of its content we must have strong reason to believe that the regulation is called for. The majority here makes clear that it considers the material support statute, as applied to speech, to be a regulation based on content, because not all speech is prohibited, only that speech to terrorist groups “that imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’ (22).
But what if the “speech” in question is actually expressed via conduct – such as the speech involved in burning one’s draft card? A 1960s case about draft-card burning approved a less-demanding standard of review than “pure speech” cases require. Here, the majority rejects the plaintiffs’ argument that the statute regulates “pure political speech” – on the ground that completely pure speech, speech uttered independently of any terrorist organization, is not subject to the statute (20). But even if we think of speech that provides material support to terrorist organizations as “conduct” of a sort, the majority emphasizes that “the conduct triggering coverage under the statute consists of communicating a message.” (23) On that basis, the Court appears to conclude that “‘we must [apply] a more demanding standard” of scrutiny – though the Court never actually specifies what that standard is. Justice Breyer in dissent spends some time on the question of just how demanding a standard should be employed, but ultimately concludes that “I doubt that the statute, as the Government would interpret it, can survive any reasonably applicable First Amendment standard.” (Dissent at 6-7)
We are dealing, then, with a heightened-scrutiny context – in other words, one where the benefit of the doubt must be given to the speaker. It appears that the Supreme Court is unanimous on this score. (A partial qualification: the Court notes an argument by the government that “speech coordinated with foreign terrorist organizations” is like “speech effecting a crime, like the words that constitute a conspiracy.” 22 n.5. This argument could mean that such speech “triggers no First Amendment scrutiny at all.” Justice Breyer, in dissent, emphatically declares that “[n]ot even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.” (Dissent at 5.) The Court doesn’t express any attraction for the Government’s proposition, but also does not reject it on the merits; it declines to “consider any such argument because the Government does not develop it.” Id.)
But how much benefit, of how much doubt? In my next post on this case, I’ll take up the dissent’s answer to this question.
Friday, July 9, 2010
Tax deductions for support to West Bank settlements and the courts' role in reviewing foreign policy judgments
A New York Times article by Jim Rutenberg, Mike McIntire, and Ethan Bronner, "Tax-Exempt Funds Aid Settlements in West Bank" (published July 5, 2010) provides an ironic counterpoint to the "material support" statute. Although US foreign policy, at least as articulated by the Obama Administration, firmly opposes Israeli settlements on the West Bank, many Americans are actively supporting these very settlements, some of them with their own labor in the settlements, some with tax-deductible donations. (There are limits on what activities can be supported with tax-deductible donations – and there are questions about whether those limits have been obeyed – but it seems clear that some donations are fully entitled to tax deductibility.)
Why are these donations tax-deductible, while material support to designated terrorist organizations in the form of money or even in the form of training in use of peaceful international dispute settlement mechanisms is criminal?
One answer might be that our interest in suppressing designated terrorist organizations is “compelling,” while our interest in preventing expansion of Israelis’ West Bank settlements is not. But why would that be so? One plausible answer would be that the designated terrorist organizations are a grave danger to the United States, while the Israeli settlers are not. This may in fact be true, but it’s hardly self-evident. The settlers, some would say, are contributing directly to the rise of Islamic hatred of Israel and the United States, and thus are a cause of the terrorist threat we face today. Meanwhile, the Kurdish PKK and the Tamil LTTE might disclaim any hostile intent towards the United States (as the settlers no doubt would as well). While the PKK and the LTTE may be dangerous to countries with which we wish to maintain friendly ties, and material support to them from US citizens might therefore have foreign policy repercussions, it’s not certain that those repercussions are greater than the ones resulting from US citizens’ support for the settlers.
It’s hard for me to see how a court could assess which set of foreign policy impacts poses the graver problem for the United States. If that’s so, then perhaps all that a court can usually do is to ascertain whether both political branches concur on an objective. If Congress and the President agree on something, it’s more compelling than if only one branch or the other endorses it. If one branch supports it while the other overtly opposes it, the case for “compelling” status might be even weaker. Putting such weight on whether the two branches are in agreement or not is true to the teaching of Justice Jackson’s 1952 concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), a very influential guide in this area.
But perhaps the two branches concur on the need to block further settlement expansion. (There surely are members of Congress who don’t agree – but unanimity isn’t what’s required. We can, in theory, go to war based on a declaration of war that gathers 50% plus one of the votes in the Senate and the House.)
If the goal is agreed upon, and if we assume that that agreement by itself qualifies it as a compelling objective rather than just, say, an “important” or “legitimate” government objective, then why is tax-deductible support for the settlers permitted? Presumably the answer would be that barring material support to settlements is not necessary to achieve our foreign policy objective of blocking continued settlement expansion.
Perhaps barring material support -- even labor and money -- isn't necessary to stopping the expansion of the settlements. Perhaps banning material support -- even speech, such as training in the use of international dispute resolution mechanisms -- is necessary in the context of designated terrorist organizations. But how would one ever prove either of these propositions in a court?
One answer to that conundrum is for courts simply to defer to the political branches' judgments, either by refusing to assess them (for example, by calling such matters nonjusticiable "political questions") or by assessing them but more or less automatically accepting the political branches' judgments.
But there are other possibilities, to which I'll return, with the help of a discussion of how much deference the Humanitarian Law Project majority and dissent give to the political branches’ foreign policy judgments.
Monday, July 5, 2010
Sunday, July 4, 2010
The answer, Cheney's answer, was the one percent doctrine. Suskind reports Cheney formulating it in these terms: "'If there's a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response,' Cheney said. He paused to assess his declaration. 'It's not about our analysis, or finding a preponderance of the evidence,' he added. 'It's about our response.'" (62)
Suskind's book has no footnotes, and so does not even cite "Interview with CIA officer" or similar sourcing. Reading the book, however, I have the feeling that many of his sources were in the intelligence community, and in particular in senior ranks of the CIA. This book portrays the CIA, and George Tenet (its director, originally appointed by Clinton, who was kept on the job by Bush), in a quite positive light. The CIA struggles to insist on the analytic facts, to which the White House is almost indifferent. Tenet protects his people (190-91), takes the fall for Condoleezza Rice and others in public (309), works his particular personal magic with spies and dictators from around the world on our behalf, and makes the war-fighting decisions (such as ordering Predator strikes) for which the CIA is now responsible. He also, of course, must be responsible for the CIA's abusive, at least sometimes torturous, and apparently largely fruitless interrogation methods -- which began, Suskind tells us, with one Abu Zubaydah. "[T]he United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered." (111) There is, of course, more than one side to this story -- Tenet has been criticized as Bush's enabler, while after his departure the administration purged the CIA of those it considered insufficiently loyal (331). But the picture of Tenet and his aides as the people actually on the front lines, making very hard choices and sometimes wrongly, but still trying to address the impossible threats we faced in a coherent way, is quite persuasive.
Time is not on our side, Suskind feels. "The model of the modern Islamic terrorist -- seasoned by violent ideology and frustration, supported by ready access to information and means of destruction, driven toward an end of martyrdom -- is an elegant construct, easily replicable, difficult to counter." (340) There clearly are no short-term fixes. Many people knew this, but perhaps it is a measure of the sense of comfort and prerogative America had that we collectively opted for what amounts to an effort at a quick fix. Or perhaps it is not a measure of America's soul but just a product of its politics, that led -- for reasons having almost nothing to do with the threat of terrorism -- to George W. Bush ascending to the White House. In any event, we or our leaders decided to try something quick (or at least drastic): Change the balance of world order, we thought, and things will be different. They weren't. Suskind's overall point is that we were extremely frightened, but that the way we reacted ultimately took us far from the sources of principle and wisdom that we need to be ourselves, and to struggle over a long haul.
Wednesday, June 30, 2010
The decision by South Africa's Constitutional Court in Mazibuko and Others v. City of Johannesburg and Others, handed down in October 2009, highlights the perplexing issues entailed in recognizing a constitutional right to water. Here's a preliminary question that's not so perplexing: if people have a right to water, is it a right to unlimited water? The answer must be no, since there's no such thing as unlimited water, least of all in a "largely arid country" (as the Constitutional Court characterizes South Africa, paragraph 3). But here's an observation that makes this first proposition less helpful than it might have seemed: for someone who has plenty of water to make judgments about how much water other far less fortunate people are constitutionally entitled to is deeply discomfiting. One must always empathize with people who are so profoundly in need -- and yet South Africa cannot provide all that its people need.
But if no one has a right to unlimited water, then can water be automatically cut off after a certain amount has been provided? This was one of the issues in Mazibuko. It's worth emphasizing that this question in a sense only could arise because something quite impressive already existed in the city of Johannesburg, namely a system that did provide some amount of water to each person, and without charge, as a matter of constitutional right.
So the question really was, what happens when this guaranteed, free water runs out? Even if we agree that the water can't just keep flowing forever, no matter what, a seemingly technical legal question may have great practical significance: if the water shuts off, does the shut-off count as a deprivation of a right or not?
If you have a right to water, subject to cut-off when that step is properly justified, then arguably you have a right to a hearing each time you run over your allotment -- say, around day 25 of each month, if your allotment is distributed on a monthly basis. If, on the other hand, your only right is to the basic allotment, then when the meter runs out the water simply stops, without any further ado.
The word "meter" isn't metaphorical. The system the Constitutional Court considered, and unanimously upheld, included pre-paid meters which did indeed turn off the water (unless additional water credits were purchased) when the monthly allocation ran out.
Constitutional abstractions aside, the problem is a stark one: protecting each person's access to more water if they rightfully should receive it is likely to be costly (in terms of hearings held, and water supply continued) and likely also to encourage some people who rightfully shouldn't get extra water to game the system -- all to the detriment of the overall societal effort to supply water and other socioeconomic rights to all. But cutting off water will harm some truly needy people -- even, as the South African legal scholar Michael Kidd has noted, leading to outbreak of disease as cut-off users turn to alternate, unsafe sources of water.
It seems to me that the Constitutional Court essentially concluded that this dilemma had no perfect solution, and that it would therefore defer to the Johannesburg water authorities, who were at least making sincere and diligent efforts to fulfill their task of providing water to all. There is good reason for such deference. Courts can't run water systems, and if the design and operation of water systems inevitably involves choices among various imperfect alternatives, those are the sorts of choices we generally think elected decisionmakers should make.
But it is very troubling to think of families turning in desperation to tainted water. The Johannesburg system allocated water by the "stand" (a unit of property), and actual stands have widely varying numbers of people living on them. No doubt the poorest stands tend to be the most crowded, and for the people on these stands the water allotment per person is at its least. Specifically, Johannesburg allocated 6 kilolitres of free water to each stand, an amount that supplied each resident of a stand with an average household size (3.2 people) with approximately 60 litres of water per day. That amount, the Constitutional Court noted, was well above what even the challengers of the policy said was constitutionally required. (Paragraph 88) But for a household in Phiri (an area of Soweto), where an average of 8.8 people lived on each stand, this policy would deliver only about 23 litres per day per person, a worryingly low amount.
These poor households were not entirely without recourse, since a program allocated 4 extra kilolitres per household if they registered as indigent. I agree with the Constitutional Court that requiring registration as indigent is not unacceptably stigmatizing (paragraph 101), but in fact the program apparently didn't work very well, since only a little over 1/5 of the eligible households registered. (Paragraph 81)
Perhaps some better distribution system should have been required, to insure, or at least make it more likely, that no one faced acute health risks as a result of a water cut-off. Increased allocations for specially crowded stands might have been feasible, though the Court thought otherwise (paragraph 84). Or some system of emergency aid might have been put in place. But a perfect guarantee seems very hard to achieve, unless the water never stops flowing -- and so all policies that do cut off water are balancing individual against community need.
It's also conceivable, however, that in Johannesburg there were enough safe alternative sources of water so that the cut-off system did not pose the same acute health risks as it could have elsewhere. And it must be said that while the poorest of the poor were at risk of shut-off, they were not being deprived of, or denied, all water -- they received the basic, free allocation. In that respect, this case is weaker than Government of the Republic of South Africa and Others v. Grootboom and Others, the pathbreaking 2000 decision in which the Constitutional Court decided that a plan to implement the constitutional right to housing had to make some provision for the needs of the neediest, those homeless here and now.
To all this, one further complication must be added. In the last years of apartheid, a culture of nonpayment had grown up in Soweto and other predominantly black areas of Johannesburg and South Africa. Nonpayment was a form of resistance to apartheid, but it did not end with the achievement of democratic government. So a further problem for the Johannesburg water authorities was that people were accustomed to getting water without paying for it.
How to overcome a culture of nonpayment? That's another difficult question. One wrong answer would be by brute force and confrontation. The people are not to be bludgeoned. Yet who would not prefer free water to water available only for a fee? Men and women are not angels, and so high principles alone will not likely alter a practice so seemingly in one's self-interest (only seemingly, since in the long run water costs society money, and will not arrive without it).
So the pre-paid meter system becomes very attractive. It switches the burden of inertia: now, without payment, the water will automatically run out. And it individualizes the situation: just your water runs out, since you didn't buy water credits. In a society with a culture of payment such a system would be unnecessary, but perhaps in South Africa it was called for. That wouldn't remove the need for measures to protect those who ran out of water and could not afford to pay for it, but it might justify using the pre-paid meter system in the first place.
Finally, what should one make of the evidence cited by the Court to the effect that after people got used to the new system, they were generally rather happy with it? (Paragraph 18) The installation of the meters went in tandem with upgrading the Soweto water supply infrastructure, and it's plausible to think the two really were dependent on each other -- no dependable revenues, no way to finance a new infrastructure. And perhaps that is what most of the people of Phiri concluded.
If that's so, does it matter constitutionally? In some contexts, we would say no. Even if many people want my right to free speech abridged, I'm still entitled to exercise it. (Though not always and everywhere -- not with a loudspeaker in a quiet neighborhood late at night, for instance.) But socioeconomic rights seem more intrinsically concerned with costs: if I am entitled only to those rights that the state is progressively achieving by reasonable measures within the limits of its available resources (the characteristic dimensions of the socioeconomic rights in South Africa's constitution), then reasonable choices about who gets what seem intrinsic to what the constitution secures. Unless there is some minimum amount that everyone must have -- and that the state can in fact provide -- there will inevitably have to be balancing of the socioeconomic claims of some against others.
And if that balance is to be made, it seems to me that the judgments of the people themselves about whether that balance has been struck rightly are relevant. The residents of Phiri who were satisfied did not have the right to deprive their unhappy neighbors of constitutional protection -- but their views were, I think, relevant to deciding whether that protection, the guarantee of reasonable measures to provide water, had been provided.
So, with the privilege of as much water as I want, I hesitantly suggest that the system of pre-paid meters in Phiri, Johannesburg was constitutional in and of itself, though the constitution might have required more than Johannesburg had done to ensure that the neediest of its families had enough water to meet their basic human needs. I welcome comments by those closer to the facts about whether they agree.
Sunday, June 27, 2010
Wednesday, June 23, 2010
There's a lot to be said about this decision, but I want to focus here on one observation by the majority. Rejecting the plaintiffs' arguments that the First Amendment should protect their efforts to train a terrorist organization in the use of international dispute resolution processes, the Court says that such training might actually "benefit that organization in a way that facilitates its terrorist activities." (Majority, at 33.) This must be a possibility, just as it is possible for any resource or skill to be used for good purposes or bad. As Justice Breyer says in dissent, the logic of this argument is extremely far-reaching, for if this danger is a reason for suppressing "speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations," it is also a reason for suppressing other speech, including absolutely pure political advocacy. (Dissent, at 13-14.) The majority makes clear it is not asserting that Congress could do so, but the logic of its argument would provide a reason for upholding such laws if Congress chose to pass them.
All that is by way of background to the point I want to focus on. This point, as put by the majority, is that "[i]f only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II." (Majority, at 33-34.) As I've thought about the issues of this case over the years, I've worried about roughly this issue -- that the logic of the free speech critique of the "material support" law seemed to carry all the way to supporting, say, the (hypothetical) hospitals of Al Qaeda.
It appears that none of the justices believes free speech extends that far. All seem to accept that fungible resources, even if given for good ends, enable bad recipients to use other equivalent resources for their own malign purposes. Justice Breyer argues, however, that "[t]here is no obvious way in which undertaking advocacy for political change through peaceful means or teaching the PKK and LTTE [designated "terrorist organizations," one Kurdish and one Tamil], say, how to petition the United Nations for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible." (Dissent, at 8.)
But would US citizens have had a free speech right to teach the Japanese government methods of peaceful international dispute resolution during World War II? Doing so wouldn't really have involved the transfer of fungible resources, as Justice Breyer points out. Yet it's hard to believe that such speech would have been constiuttionally protected. If it wouldn't have been, then why would the First Amendment entitle US citizens to do the same thing for designated terrorist organizations?
I don't think that Justice Breyer offers an explicit answer to this question. But there is a possible, and at first glance straightforward, response to it: we had declared war against Japan, and in wartime free speech rights are subject to special limits. In contrast, we have not declared war against the organizations whom the Secretary of State has designated as "foreign terrorist organizations," to which the ban on material support applies. (The majority notes, at 3, that the Secretary designated 30 such organizations in 1997.)
I don't believe that the constitution requires a declaration of war as a basis for our going to war. Despite the absence of a declaration of war, therefore, I would say that our conflict with Al Qaeda is a war validly authorized by the Authorization for Use of Military Force (the AUMF), a statute passed by Congress and signed into law by President Bush in September 2001. Some might disagree with these judgments (and I'll return to one reason for disagreeing below). But even if we are at war with Al Qaeda, I do not think we have gone to war with all the various organizations designated by the Secretary of State as foreign terrorist organizations, including the Kurdish and Tamil organizations involved in this case. It's open to doubt whether Congress even could authorize the selection of targets of war by the Secretary of State, but in any event I don't think that as a matter of actual fact our statutory response to these organizations can plausibly be seen as having amounted to a national decision for war.
If the President can take us to war with anyone he or she chooses -- if President Bush had the authority to launch an actual "war on terrorism" rather than just a statutorily-authorized war against Al Qaeda -- then the question of what choices the President or his subordinates made becomes a more difficult one. But I do not agree that the President's war powers extend that far, and so I do not understand us to be engaged in a global war on terror, or even against all "designated terrorist organizations."
Assuming that the fact of a validly authorized war provides a straightforward reason for saying that US citizens had no right to teach the Japanese government -- or Al Qaeda -- techniques of peaceful conflict resolution, why didn't Justice Breyer make this point? Perhaps because it amounts to a potentially broad concession: that indeed first amendment rights can be narrowed during war, such as the war we are now in.
I would make that concession. The alternative, I think, is to make the majority's question about Japan unanswerable, or to make it answerable only as the majority would answer it -- that is, to accept that if limits on speech to the Japanese government in World War II would have been constitutional (and surely they would have been), then similar limits must always be constitutional. I think it is much better to accept that war can impose special limits, and to insist that when those special wartime rules are inapplicable, then the first amendment protects a wider range of speech.
The main problem with the approach I'm urging is that we are, right now, at war. So, it might be argued, even if the material support statute wouldn't bar training designated terrorist organizations in peaceful conflict resolution in wartime, it does bar such training right now, precisely because we are at war. But we aren't at war with these organizations (unless they are encompassed in the targets identified in the AUMF of 2001 -- essentially, all those responsible for, or harboring those responsible for, the 9/11 attacks).
It is possible to argue that we are not "at war" with Al Qaeda either, and that we should, or even legally must, consider our conflict with Al Qaeda, despite its statutory authorization in the AUMF, as something other than war. Unlike some observers, I do accept the "war paradigm" as a description of our clash with Al Qaeda, despite the fact that Al Qaeda is not a state. It seems to me that what has made our encounter with Al Qaeda so morally and legally troubling is not that we conceived of it as a war, but that we asserted that in this war we could do almost anything. That was a terrible mistake. In the same way, I think it would be a terrible mistake to go from the premise that we are at war with Al Qaeda to the conclusion that we can do almost anything to any designated foreign terrorist organization, or to the conclusion that we can restrict the speech of US citizens vis-a-vis such organizations as if we were at war with these organizations.
In short, I would accept that war can restrict speech, but insist that war is nothing like a blank check for such restrictions. None of this, however, quite answers the question of whether the Supreme Court was ultimately right to accept the particular restrictions at issue here. But if, as I've argued, we are talking about peacetime limits rather than wartime powers (because the organizations receiving "support" were not among those with which we are at war), then I'm inclined to agree with the dissenters that the risks of harm to the US from the particular kinds of speech at issue in this case are outweighed by the constitutional priority for speech.
Yet perhaps the most striking aspect of the case is that the vote in favor of the statute's application to such speech is 6-3. Justices Stevens and Kennedy, two of the most powerful voices for the rule of law over the past decade of war, concurred with their more conservative colleagues that this speech was beyond the constitution's protections. In a future post, I'll look further at the reasons why the majority justices viewed the potential harms of this speech as so substantial that the First Amendment did not protect it.
Saturday, June 19, 2010
Alberto Mora, the idealistic General Counsel of the Navy who thought the Defense Department would realize that torture was wrong, is one example. (213-37) James Comey, the tough Deputy Attorney General who told the Senate during his confirmation hearing, "I don't care about politics. I don't care about expediency. I don't care about friendship. I care about doing the right thing." (310), is another. Dan Levin, the acting head of the Office of Legal Counsel who subjected himself to waterboarding in an effort to determine whether it really was torture or not (298-99), is a third. Matthew Waxman, a Deputy Assistant Secretary of Defense, and John Bellinger, "the highest ranking lawyer in the State Department" under Condoleezza Rice, are on this list too (316-24).
But heading the list is probably Jack Goldsmith, a conservative legal academic who became head of the Office of Legal Counsel, set about to research the law on torture and other subjects that John Yoo and others had addressed in secret memoranda, and ultimately withdrew what was called "the Golden Shield," perhaps the critical memo that had legitimized torture. (261-94) This decision, which Goldsmith reinforced by timing his resignation so that if the withdrawal was overridden his resignation would appear to be in protest (294), meant that what had been said to be legal was so no longer. This wasn't just a closing of the gate prospectively, but potentially an expulsion from the gate retroactively.
Despite the bad name lawyers get a lot of the time, they've shown this kind of courage in many oppressive countries. I realized this when I studied the work of anti-apartheid lawyers in South Africa in my book In a Time of Trouble: Law and Liberty in South Africa's State of Emergency (1992); their work was remarkable, but happily it was not unique. I found examples of lawyers' taking stands against government oppression in Argentina, Brazil, Chile, Spain, France, Russia, Ghana, Kenya, the West Bank, Syria, India, Malaysia, Bangladesh, and the United States, and the full list would surely be longer. It seemed to me as I studied South African lawyers that one source of their determination and courage lay in the traditions of the legal profession itself, and Mayer's book offers some signs that that was true for the lawyers resisting US torture too.
Thus Goldsmith, as Mayer portrays him, "convinced himself that it would be best to set aside his personal qualms [about how to treat detainees]. The moral trade-offs between torture and security were so difficult, he saw them as policy questions for the President. His job as a lawyer, he told himself, was simply to provide legal analysis. His political and moral opinions were irrelevant." (267) Many lawyers would say that their political and moral opinions did rightly play some part in interpreting what the law was, but Goldsmith evidently was not one of them. He believed there was a there there, in the law itself, and his job was to find it.
What's striking is that what some of these lawyers did was ... research. They apparently did not believe that the law was indeterminate; instead, they felt that by their own hard work (up to and including enduring waterboarding, in Dan Levin's case) they could determine what the law really meant. It's quite possible to imagine other lawyers, not convinced that laws had demonstrable intrinsic meanings, resisting the Bush Administration approach because they felt it was morally wrong, or even strategically unwise. But these lawyers apparently found strength in adhering to the law. If they hadn't believed that laws meant some things and not others, could they have believed that the law was worth standing up for?
That question isn't actually just rhetorical, and there is more than one possible answer to it. We can imagine people standing up for, say, the process values of the law -- declaring that the law doesn't have a determinate meaning but that the process by which it works out decisions in cases is valuable and worth upholding. A faith in fair process is a meaningful faith. And its significance is reflected in the events Mayer's book describes. It seems quite fair to say that those who opened the door to harsh treatment sought to read the torture statute and other laws as permissively as possible; and fair as well to say that lawyers such as Levin and Goldsmith sought to figure out what the torture statute really authorized. That difference of attitude is a process difference; Levin and Goldsmith were more impartial than Yoo and Addington. (Part of my argument against the memos authorizing torture, which I alluded to in my previous post, is precisely that they took the wrong interpretive approach -- though I've argued, in essence, that the right approach is an interpretation in favor of liberty, not simply a neutral effort to discern the meaning of the words.)
Important as process may be, in any event, my sense is that the lawyers who resisted the Bush Administration's approach to torture held more than a faith in process. They believed that the law actually meant something, though process might help them to determine what that was.
It might be fair to say that ultimately what they thought was that the law limited government power. That's perhaps the fundamental point about how to read the torture statute: if you don't read it as a limit on government power, you've misunderstood it altogether. If you don't read democratic constitutions as limits on power, you've again missed the point. John Yoo told Jane Mayer that Congress couldn't "'tie the president's hands in regard to torture as an interrogation technique.' He continued, 'It's the core of the commander in chief function. They can't prevent the president from ordering torture.'" (153) To consider the commander in chief power unlimited is to miss the central point about a constitution built around checks and balances; to extend that notion of unlimited power to torture was the same mistake, augmented exponentially.