Post-apartheid South Africa and the post-Civil War United States

Perhaps the founding moment in US history that's most analogous to South Africa today is not the Revolution and the writing of the Constitution but the Civil War and its aftermath. The writing of the constitution was about constructing a nation, and that was certainly part of what South Africa undertook after the end of apartheid. But it was the Civil War, and the Reconstruction amendments ending slavery and barring racial discrimination, that marked the United States' effort to cleanse itself of injustice -- and that's the central theme of South Africa's transition.

What's troubling about this analogy is that the course of post-Civil War politics in the US did not run smooth. There were real efforts to remake the South, but they ran aground, and meanwhile Washington became the scene of remarkable levels of corruption (as my son Brian reminds me), perhaps partly because the spoils had grown more abundant as the war expanded the role of government, and partly because a new party and new people now had access to the treats Washington offered. My impression is that the Republican Party -- the noble party of Lincoln -- swiftly devolved to emptily "waving the bloody flag" of the Union's Civil War cause. It's possible to see South Africa today as all too similar, with grasping, mercenary politicians wrapping themselves in the slogans of liberation as they pursue their own interests. Perhaps this is one characteristic form of the decline of ideals as they become absorbed in the overwhelming practical business of ordinary politics.

But if that is so, the implications aren't all bad. The end of Civil War idealism in the United States was a deep loss, above all for the cause of racial justice which faded from view for many decades. But this was not the end of politics, or of struggle against injustice. Pride goeth before a fall, and the arrogant wealth of the Gilded Age in the late 19th Century surely contributed to the rise of unions and of modern liberalism in the United States (among other developments), and over a long sweep of time the "arc of justice" for African-Americans became prominent again as well. Perhaps South African politics too will reshape itself into new, and vibrant, movements against the inequalities left from the past and still being generated in the present. Then, happily, it will be clear that the problems of today's South Africa are not signs of looming disaster but part of the often disappointing, yet still profoundly valuable, play of democratic politics.

Jonny Steinberg's "The Number" and the meaning of a constitution of no slogans

Jonny Steinberg's remarkable book The Number illustrates -- in virtuoso style -- the kind of sensibility that that a constitution of no slogans would rest on. His story of Magadien Wentzel, a senior member of the prison gang known as the 28s, confounds almost any expectation.

Oppression causes crime, it's often said, and rightly; but as Steinberg rightly observes, crime is a particularly conservative response to oppression. Criminals leach off of any order, and so they are not necessarily friends of the other victims of the order from which they steal. But the prison gangs had politics, anti-apartheid politics, and their hopes that their own liberation would follow from South Africa's were bitterly disappointed. All this is a useful reminder that "the oppressed" are far from a uniform mass, and that in fact among the oppressed are both victims and oppressors -- and that these two categories may often overlap, as poor people turn to crime against other poor people as their path to some degree of power and wealth.

What is more startling, however, is to learn that the Number -- actually three separate groups, the 26s, 27s and 28s -- had existed as long as South Africa had been a nation, and that their existence rested on ritual and mythology, all generated, it seems, in or near prison. Leaders of the Number had uniforms, weapons and a sacred text written on the hide of a bull -- but all of these implements existed only in their minds. They also had memories, or fantasies, of a golden age of the Number, some decades back from the tarnished present. In short, these oppressed men, who were vigorously engaged in oppressing other prisoners and carrying on a choreographed, violent-but-usually-not-lethal interaction with the guards, were also engaged in social ordering and myth-making. They were dangerous criminals, and creators of a society. And their odd form of order was itself threatened, not so much by the warders or by the end of apartheid as by the rise of drug gangs on the outside that for strategic reasons of their own appropriated the symbolism shaped by the Number.

What could a just society possibly do about the Number? What, especially, could such a society do if it was -- as South Africa was -- terrified by an explosion of crime? It is hard to see the legal framework big enough to speak meaningfully to this world.

But in fact the book is not just about the capacity of a gang society to evolve and persist, like antimatter in a universe of matter. For it is also, and above all, the story of the incompleteness of that gang society, and the life of Magadien Wentzel, who became a leader of the Number and then left it because he wanted to have a life that had meaning. That turned out to be almost as intractable a challenge for him as dealing with the Number might be for South Africa: filled with dreams of helping steer others away from crime, he found himself without money and without employment, living in isolation and dependent on the generous of people whose generosity faded.

And yet he did not, at least in the time that Steinberg's book covers, succumb. This one man, in fact, seems to have found a break -- because in the end Steinberg could not bring himself to profit from Wentzel's story while Wentzel himself was trapped in poverty, and so he signed over 10 % of the book's royalties to Wentzel himself. The book won a prize, and readers, and I hope that means that Wentzel himself has found opportunities -- and not been undercut by them. It is moving to read Wentzel's own Afterword, with which the book ends, and its last words, "May God be the judge of this book." Perhaps every book seeks the moral seriousness that would deserve a standard so profound, but certainly few books end with quite this striking a call for commitment.

And a constitution of no slogans? The judges and lawyers shaping a constitutional order of this sort would resist easy generalizations (from "poverty causes crime" to "criminals are irretrievable"). They would recognize the complexity of even a single life. They would not be blithely idealistic, but they would not give up on hope either. And they would recognize that they themselves are, inescapably, part of the story that they study and tell.

A constitution of no slogans

A thought on Christmas Day:

Life is more complex than we might have expected. Human beings turn out not to share a uniform genetic heritage -- some of us are the product of interbreeding with Neanderthals, others (according to this week's news reports) of interbreeding with a hitherto unknown offshoot of humanity called the Denisovans. Human beings are also notoriously plastic -- our children are born knowing almost nothing, and take 20 years to achieve adult knowledge, while simpler creatures are fully equipped for their lives much more quickly, but the result is that we can adapt to far more varied and challenging circumstances than we could if we were born set in our ways. Even in adulthood we are constantly shaping the people we ourselves will become, and so we can become many things. William James said something to the effect that we should choose those beliefs that best serve our interests, and -- though the process is surely not so willful or simple as that -- we do have some ability (sometimes too ready an ability) to follow his advice.

All of which says that the sphere of fixed certainties is pretty modest. That doesn't leave us rudderless, but it suggests the need for a certain measure of restraint as we encounter the complex realities of how lives work. Just to pick up where my last post left off: how does customary law work? What are the currently governing rules of customary law? What are people's actual customs? These are questions with no simple answers, and there are likely many more such difficult questions, in the United States as in South Africa. The beginning of wisdom, I think, is to acknowledge how much we don't know, and how much may indeed never be settled, and to try to listen as hard as possible to people so that we can understand their actual needs and desires and principles as well as we can. I know that there is no listening without framework, but there are more and less open frameworks, and we need to try to be as open as we can. In that sense, though we need a constitution that protects against the real dangers of oppression and needless suffering that are part of life in society, we also need a constitution of no slogans.

On figuring out what customary law is, especially when it's changing

(With apologies for two months of non-blogging!)

Back from a conference in Cape Town honoring Martin Chanock for his distinguished work on South African legal history, customary law and legal education, I'm realizing that the task of making customary law part of a Western-style legal system -- as South Africa's constitution envisions -- is truly complex.

If customary law were written down, of course, it would be easy to apply it in the same courts that apply common law principles, statutes, and constitutional requirements every day. But if customary law is written down, it risks becoming detached from actual custom -- as indeed happened, notoriously, as whites created a body of customary law adjudication and legislation in the 19th and 20th centuries.

So, too, if customary law were definitively pronounced by a particular person, such as the chief, or by a particular body, such as a council of elders, then its contents would be readily determinable. But if customary law truly is the law created by custom, then it is entirely possible that even if custom at one time conferred such law-pronouncing power on the chief or the council, the custom has now shifted -- and because of that shift, the chief or the council no longer actually have customary sanction for declaring what customary law is.

Or another variation: Suppose that the chief, for instance, is still empowered by custom to make rulings about the content of customary law. But custom also makes clear that the chief's task in this process is not to make the law he (or she) prefers, but to discern the law that has evolved from the customs of the community. How should the chief go about doing this? At this point the chief is in something of the same position as the Western-style judge, though the chief has the substantial advantage of actually being closely familiar with the customs of the community (and the potential disadvantage of having his/her own personal or political interests quite directly at stake): for each of them, the problem is that the customs in question may be unclear or may be in the process of changing.

If a community at one time held a custom of, say, male primogeniture in inheritance, how would someone -- its chief, or a judge of the South African High Court -- tell whether that custom still held, and still had the force of law? If most of the community no longer adhered to the custom, would it no longer have the force of law? Perhaps the answer is obviously yes (that it would no longer be law), but what if most members of the community still declared the point to be a customary rule, and tried to cover up the moments when they themselves departed from the rule? Or what if most members of the community said they weren't sure if the custom was still part of their law, while the rest of the community asserted that it definitely was? Or what if current members of the community were divided in their views, but the chief, or the judge, was convinced that one view fitted much better with the accumulated history of the group than the other view did?

I imagine there are many variations on these questions, variations that are actually arising in real South African communities, and perhaps in many other nations where customary law remains important. (There may well be analogous questions in connection with the customary law of nations -- but I won't try to pursue that issue here.) There don't seem to be any obvious solutions, least of all for judges who aren't very familiar with the customs whose actual content and legal force they are attempting to grasp. It would be convenient if the problems could simply be handed over to traditional leaders such as chiefs, but that solution is logically a circular one if the extent of the traditional leaders' authority is itself one of the controverted issues of customary law. It's also problematic to the extent that chiefs' power, even if uncontroverted in terms of tradition, is subject to constitutional challenge for its inconsistency with constitutional liberties now guaranteed to South Africans in every context of their lives.

Perhaps the best that can be said is that a society committed to honoring customary law must begin by paying very close attention to it, and to the various views of it that different members of customary communities express. A good deal of South African law constitutional law now seems to be aimed at generating that kind of close attention to the actual views of actual, previously unheard, people -- and that effort is exactly on target.

Clear and unclear laws, and lawyers' role in interpreting them

How should the government's lawyers interpret the law?

The more the government's officials and actors feel bound to stay within the law, the more important this question of interpretation becomes. As I mentioned in a post yesterday, Jack Goldsmith saw the Bush Administration's most senior lawyers as appalled at the idea of the President engaging in deliberate violation of the law. Jane Mayer's account of these years, which I discussed in an earlier post, suggests that some weren't quite so anxious on this score. But Goldsmith adds an important institutional point: the sheer number of lawyers contributes to the momentum of legal compliance. He notes that "[i]n the 1970s the CIA had only a handful of lawyers. But as legal restrictions on CIA activities grew, and despite huge personnel cuts in the 1990s, the number of CIA lawyers rose and rose, and today stands at well over one hundred. The number of lawyers in the Defense Department grew even more steeply during this period, and today stands at over ten thousand, not including reservists." (The Terror Presidency, at 91).

So, then, how should these lawyers interpret the law? It is hard to disagree as a general matter with Goldsmith's evident view that we do not want our government caught in "a paralyzing culture of risk-averse legalism." (94) But consider, for instance, the possibility that the government's use of lethal force in a particular situation (say, in controlling crime on a New York street) might amount to murder. If there is doubt about whether particular acts might constitute murder, we might say, we want the government to stay clear of them altogether. We routinely say, similarly, that it is better to let 10 guilty people escape conviction than to wrongly convict a single innocent defendant.

It is true that even in the context of criminal justice (even the ideal version of criminal justice, let alone the gritty reality playing out every day in streets and jails and courtrooms), we do not want "a paralyzing culture of risk-averse legalism." No one could want that, as such. What we want are protections that effectively prohibit wrongful acts while effectively permitting lawful ones. But in fact the law may not provide clear and unambiguous rules, and sometimes it arguably shouldn't -- when vaguer and more contextual "standards" better implement the law's purposes. In any event, when the law isn't clear and unambiguous, lawyers can't say that it is.

This point cuts both ways. Just as there may not be clear authorization in the law for acts that soldiers or intelligence agents believe are necessary, so there may not be clear prohibition in the law for acts that defenders of human rights say are abhorrent. Even saying we should be risk-averse about murder is not such a simple matter, because what is murder in times of peace may well be lawful killing in times of war, and whether we are in times of peace or war may well be a cloudy question. Questions like these in fact plagued the Clinton Administration, as it contemplated trying to kill or capture Osama bin Laden. Goldsmith appears to criticize "the lawyers' refusal to be clear about what constituted self-defense, or about how imminent a threat Bin Laden must pose before the CIA operation could commence." (95) But these were actually hard questions, and clarity about them may have been unattainable.

Goldsmith, I think, believes that government should be prepared to take risks and to protect the individual risk-takers -- rather than, for example, encouraging CIA agents "to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations." (95) But he also surely favors clarity where clarity is achievable, and believes that some clarity can be found in the law. Moreover, he is well aware that the agency he briefly led, the Office of Legal Counsel, has a special role here: if it says that some action is legal, then it is just about inconceivable that someone who acts on the basis of that advice can be successfully prosecuted for what he or she has done. OLC has "the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws .... the power to dispense get-out-of-jail-free cards." (97)

So, then, what interpretive approach should those who can dispense get-out-of-jail-free cards follow? More on that in coming posts.

Staying within the limits of the law -- and what are those limits?

In a book full of startling details, one of the most striking incidents in Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration (2009, 2007), is the story of his raising the possibility that the President might simply disobey the law as part of the fight against terrorism. (80) The idea of conscientious Presidential lawbreaking is certainly troubling, but (as Goldsmith explains at 80-81) it is not necessarily disrespectful of the rule of law, if the President in effect says to the country, "Here is what I've done because I felt you needed it done. If you disagree, I stand ready to suffer the consequences."

But the reaction of Goldsmith's counterparts in the Administration was simply stunned amazement. "Gonzalez and Addington [counsel to Bush and Cheney, respectively] looked at me as if I were crazy." (80) They were not about to have President Bush deliberately violate the law. This from an administration notorious for having, as it seemed to many (including me), disregarded the bounds of law repeatedly! But that's the point -- the Bush Administration saw itself as bound by law, but (overstating a bit) declined to see any boundaries in the law.

Putting that point less pejoratively, Goldsmith writes that "Michael Hayden, former NSA Director General and now [in 2004] the Director of the CIA, would often say that he was 'troubled if [he was] not using the full authority of the law' after 9/11, and that he was 'going to live on the edge,' where his 'spikes will have chalk on them.' Hayden's view permeated the executive branch after 9/11, and in light of the clear public demand to act aggressively to stop the terrorist threat, I agreed with it. My job was to make sure the President could act right up to the chalk line of legality." (78)

Goldsmith believed that "even blurry chalk lines delineate areas that are clearly out of bounds" (78), and in his short tenure as head of the Justice Department's Office of Legal Counsel (OLC) he courageously withdrew a number of OLC opinions that he concluded had breached those bounds. But it seems fair to say that the gist of the torture opinion that John Yoo wrote and Jack Goldsmith withdrew was that in the end the various legal restraints thought to bar the President from authorizing torture were either so full of holes or so beyond constitutional authority that in fact the President's power was unlimited.

My impression is that once it is important to find an argument for a legal proposition, there is almost always an argument to be found. In fact, once money and time are applied to a legal problem, the chances are that many arguments can be found. That doesn't mean those arguments are correct, or convincing, but they are within the bounds of plausibility. Indeed, if the bounds of plausibility are simply the bounds of what conventional argument will accept as worth saying, the sheer repetition of a claim by people with prestige and influence is likely to expand the conventional bounds enough to bring the claim within them. All of which poses the question of whether Goldsmith was right that there really were chalk lines that separated what was lawful from what was unlawful. To our good fortune, Goldsmith felt there were and acted on that conviction; but was he right? That's a subject for posts to come.

Clinical Theory Workshop 25th Anniversary Conference

I can't resist reporting here that this conference -- an anniversary party for the Clinical Theory Workshops, which I've chaired for 25 years -- took place last weekend, October 1-2, 2010, at New York Law School. The theme was "Twenty-Five Years of Clinical Scholarship: What Have We Learned, and What Should We Work on Next?" Possibly that question wasn't completely resolved, but the discussions along the way were great. You can see much more information about the conference at the New York Law School conference webpages.

I'm so grateful to everyone -- planners, presenters, facilitators, attenders (not to mention actors, songwriters and other mockers who took part in a gentle roast of yours truly) -- for all the effort they put into the conference. And the workshops, 25 years old and going strong, are the work of all of us who attend and have aimed over the years to build a forum that is serious, supportive, constructive and fun all at the same time. Thank you to all! Borrowing from the song lyrics that Bob Dinerstein wrote for this weekend, don't say nothin bad about our workshop!

The incomplete Commander-in-Chief power, as seen in 1805

Here's an interesting old statute, enacted by Congress in 1805: "An Act for the more effectual preservation of peace in the ports and harbors of the United States, and in the waters under their jurisdiction." Act of March 3, 1805, ch. 41, 2 Stat. 339. The first section deals with apprehending alleged violators of federal laws who are on foreign armed vessels in US ports. It permits a federal court to issue a warrant for a marshal to arrest the alleged wrongdoer. Then it continues:

"And if the said marshal shall deem the ordinary posse comitatus insufficient to insure the execution of the said warrant, he shall apply to the said judge or justice, who shall immediately issue his order, directed to any officer having command of militia, or any officer having command of regular troops, or of armed vessels of the United States, in the vicinity, requiring him to aid the said marshal with all the force under his command, or such part as may be necessary in executing the warrant aforesaid. And the said marshal conforming himself in all things to the instructions he shall receive from the President of the United States, or from any other person authorized by the President, shall first demand the surrender of the person charged with the offense; and if delivery be not made, or if the marshal be obstructed from making the demand, he shall use all the means in his power by force and arms, to arrest the offender, and all others who are with him, giving him aid and countenance in evading the arrest ...."

Section 2 of the statute gives a similar power to state governors, when seeking to enforce state warrants. It provides that "it shall be lawful for the governor or other supreme executive officer of the state in which the said offense shall have been committed, upon due proof thereof, and upon his being satisfied that the ordinary posse comitatus is insufficient to insure the execution of the said process, to issue his order to any officer having command of regular troops or armed vessels of the United States, in the vicinity, requiring him to aid the officer charged with the execution of the process, with all the force under his command, or such part thereof as may be necessary, in arresting the offender and all those giving aid and countenance in resisting the civil authority." Section 2, interestingly, doesn't include the instruction contained in section 1 for the forces so employed to conform themselves to the President's instructions.

These are really quite remarkable provisions. The President and only the President is the Commander-in-Chief, but these two sections require federal judges, and authorize state governors, to issue orders to federal troops. It is startling to see anyone authorized to issue orders to federal troops except the President and those below the President in the chain of command. It's even more startling to see federal judges authorized to do so, since we are accustomed today to think of judges as ill-suited even to review military decisions, much less to issue orders for the use of troops against foreign armed vessels. And perhaps it's most startling of all to see state governors empowered to issue orders embroiling federal troops with foreign armed vessels; if there is anything clear in the Constitution, it is that the federal government is the principal holder of authority to use force against foreign nations.

It is true that the marshal in section 1 must comply with instructions given by the President. Perhaps the troops ordered into action by state governors under section 2 must do the same, though that isn't explicit in that section. But this requirement seems to mean only that the President specifies how the federal forces will carry out the requirements imposed by judges or governors -- the power to impose the requirements remains with them, and thus not with the Preside

And yet -- the Eighth Congress, in 1805, apparently saw all this differently. They did not, to be sure, view this statute as routine (section 9 is a sunset clause, with a total duration of less than 4 years). But they did, we must assume, view it as constitutional. It is very difficult to square that view with an uncompromising assertion of the President's Commander-in-Chief power as exclusive and largely beyond Congress' regulation -- the assertion that underlay so much of the Bush Administration's approach to the difficult issues of war.

"Ghost Wars" and our struggles with Al Qaeda and the Taliban

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.

Humanitarian Law Project -- the dissent

How much deference, then, does the dissent say should be given to the government's judgments in this high-scrutiny First Amendment context?

On this point, Justice Breyer makes three points. The first is that "here, there is no evidence that Congress has made ... a judgment regarding the specific activities at issue in these cases." (Dissent at 15.) It does appear, in fact, that neither Congress nor the State Department official's affidavit on which the majority relied repeatedly does specifically focus on material support in the form of, for example, training in the use of international dispute resolution mechanisms. Breyer writes that "[t]he most one can say in the Government's favor about these statements [invoked by the Government] is that they might be read as offering highly general support for its argument." (Dissent at 9.)

But perhaps one should defer to such highly general support, on the ground that foreign policy issues are distinctively in the political branches' sphere of expertise and responsibility? Breyer's second point is that while "the Government's expertise in foreign affairs may warrant deference in respect to many matters, e.g., our relations with Turkey, .... it remains for this Court to decide whether the Government has shown that such an interest justifies criminalizing speech activity otherwise protected by the First Amendment." (Dissent at 16.) This statement is somewhat elusive. Perhaps Justice Breyer means that the Government can tell the Court that our relations with Turkey matter, but nothing more. Breyer next says, however, that "the fact that other nations may like us less for granting that protection cannot in and of itself carry the day." (Id.) That observation seems to imply that Breyer concedes also that the Government can tell the Court that particular steps by the U.S., such as criminalizing or not criminalizing certain kinds of speech, will cause other nations to dislike us -- in other words, that the Government not only can define what our foreign policy goals are but also has expertise, entitled to at least some deference, concerning the impact of events and actions on those goals.

If Breyer would go that far, why doesn't he accept the government's argument that here this foreign policy concern trumps the free speech interests at stake, even though heightened scrutiny protects those interests? His third point is, I think, his answer: Breyer sees the government's theory here as so far-reaching that it deeply invades First Amendment values. The court perhaps must accept the government's appraisal of the foreign policy interests, but those interests must be weighed against First Amendment costs, and that weighing is the job of the Court. (Breyer emphasizes this role at 15-16.) Here, Breyer says that it just isn't plausible to treat the kind of speech at issue here as "fungible" with direct support for terrorism in the way that, say, cash donations would be. (Dissent at 8-9). Moreover, he says that the government's argument that speech, even about international dispute resolution processes, will potentially enable terrorist organizations to "legitimate" themselves is dangerously sweeping, for any speech that somehow favored a terrorist organization's cause might legitimate it and so the logic of this argument would sweep far into unmistakably protected speech. (Dissent at 10.)

The majority's response to this is that there is indeed a stopping point -- whether the speech in question was or wasn't "coordinated" with the terrorist organization. (Majority opinion at 26.) Breyer disputes this, arguing that almost any speech will be coordinated in some sense, e.g. in the scheduling of the training class sessions. (Dissent at 14.) But the majority undoubtedly agrees that the degree of damage to First Amendment interests remains a matter for the Court to assess.

Does this mean that Breyer rejects the legitimation argument for restricting speech always and everywhere? Not quite. He writes, at 11, that "[i]n short, the justification, put forward simply in abstract terms and without limitation, must always, or it will never, be sufficient. Given the nature of the plaintiffs' activities, 'always' cannot possibly be the First Amendment's answer." This language is pregnant with a possible exception for less-abstract contentions, further hinted at by Breyer at 16: "Finally, I would reemphasize that neither the Government nor the majority points to any specific facts that show that the speech-related activities before us are fungible in some special way or confer some special legitimacy upon the PKK." One way to take these observations is to say that the ultimate difference between the majority and the dissent lies in how far the two sides are prepared to defer to the government's estimate of the severity of risk: the majority, to a considerable extent; the dissent, much less. But if the government made a stronger showing, Justice Breyer too might accept even the legitimation rationale as a basis for restricting speech.

What would a stronger showing be? One possibility would, certainly, be more specific proof of the connection between speech and legitimation for a particular terrorist organization. It's not easy to imagine compelling proof on these lines, however -- partly because legitimation itself is a rather intangible concept, and partly because gathering proof (public opinion polls? scholarly studies?) is likely to be arduous and slow, when the need for government response is presumably sometimes present and acute.

Perhaps a better interpretation, though not one that jumps out from the words Justice Breyer uses, would be that a specific showing is made when the group in question is one that we are at war against. (I suggested this in an earlier post.) The fact of war does not directly prove the special salience of harm from speech that arguably provides "material support," but it does give special reason to believe that any such harm is a grave danger to the United States. Otherwise, the Courts might find themselves either deferring to predictions of danger generally, or looking for proof of specific danger that is unlikely to be available. In war, perhaps, some special extension of government power is legitimate -- some, but not too much.

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.

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.

Foreign affairs and free speech in Holder v Humanitarian Law Project

How much should it matter that the statute prohibiting material support for designated terrorist organizations deals with foreign affairs?

I take it as clear that as a general matter we have the same right to speak freely about foreign affairs as we do about domestic matters. The fact that the President, sometimes referred to as the "sole organ" of the United States in foreign affairs, wishes to speak in one way about foreign matters does not deprive other Americans of the right to speak in different ways. Nor would Congress' concurrence with the President have this effect.

But as a general proposition the constitutional guarantee of free speech is not, in fact, understood as an absolute guarantee, but rather as a guarantee that speech will not be restricted except for a very good reason. The standard for what amounts to a very good reason can be very stringent -- say, "necessary (or narrowly tailored) to a compelling state interest" -- but it can be satisfied.

If we use the formula of "necessary (or narrowly tailored) to a compelling state interest," then the issues are "what's a compelling state interest" and "what's necessary or narrowly tailored to achieving that compelling state interest?" The decisions and judgments of the political branches of government might be relevant to both of these questions.

First, few doubt that defeating international terrorist threats to the United States is, today, a compelling state interest. But it is not self-evident that defeating every group designated as a terrorist organization is a compelling state interest. Not every group that has been called "terrorist" is automatically our enemy. At least one, the African National Congress, now is the governing party in a nation, South Africa, with which we maintain friendly relations -- the very happy result of the ANC's successful, generations-long challenge to apartheid.

Why is it in our interest to cut off support for a Kurdish organization or a Tamil organization that we have found engaged in terrorism? Both the majority and the dissent in Humanitarian Law Project no doubt agree that ending material support for designated terrorist organizations is indeed a powerful interest (Justice Breyer affirms this point explicitly, at page 7 of his dissent). I think the ultimate reason is that courts must view this goal as in our interest because the political branches of the government say it is. We, through our representatives in government, make foreign policy, and the country has a compelling interest in accomplishing its foreign policy objectives. The fact that our foreign policy may be far from a perfect expression of democratic choice doesn't really much change this analysis; it's still the only foreign policy we've got. The courts, in short, must generally defer to the political branches' identification of what we seek as a nation in the perilous world.

In roughly the same way, our political branches' choices presumably affect the application of the prohibition on treason. Article III, section 3 of the Constitution says that "[t]reason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." Exactly when speech on behalf of a wartime enemy might constitute "Aid and Comfort" I am not sure, but I think it must be the case that it is up to the political branches of our government, at least in most situations, to decide who our "Enemies" are.

Once we've identified our foreign policy objectives, what is necessary or narrowly tailored to achieve them? The material support statute can be understood as embodying the political branches' view that cutting off all material support to designated terrorist organizations is in fact necessary to achieving those objectives. If that's what the political branches have concluded, and they're the branches responsible for and expert in foreign policy, should their judgment be deferred to? If so, then material support in the form of speech could be criminalized, because doing so is necessary (per the judgment of the political branches, to which the courts defer) to achieve the compelling governmental interests (as identified by the political branches). More on this line of argument in a future post.

July 4, 2010 -- thinking about the "one percent doctrine"

It's striking to look back at the early years of the "war on terror," as I've just had the opportunity to do in reading Ron Suskind's powerful book, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11 (2007).

Suskind makes clear that the Al Qaeda/WMD threat was real. There was a lot to worry about: a country with all sorts of undefended points (287); adversaries who really did create weapons-quality anthrax (251) and also had a marked interest in nuclear weapons (and maybe, just maybe, had nuclear materials already in their possession (see 6, 70)). The question was what to do about them.

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)

There is a lot wrong with this doctrine. If we really had treated every one-percent chance as a certainty, we would soon have exhausted even our abundant resources. Truly adopting this thesis would have required a total mobilization of the nation, on the lines of World War II. Instead, and notoriously, we lowered taxes as we went to war in Afghanistan.

So no one quite meant it. But the one percent doctrine opened the door to another idea: that what mattered wasn't evidence but action. Or, as Suskind writes later, "'Justification, legitimacy,' Cheney would say, were a part of Old World thinking." (214) Though Saddam Hussein most likely didn't have weapons of mass destruction, still attacking him would shift the balance of power in the world, by making clear how aggressive the United States was now prepared to be. From this perspective, the absence of evidence that Iraq actually had weapons of mass destruction, or actually had connections to Al Qaeda, didn't really matter much. Hence the White House's elaborate efforts, reported by Suskind, to press the "intelligence community," notably the CIA, to validate evidence that was actually weak; the point wasn't the evidence, it seems, but the action -- for which evidence would be marshalled as needed. The British memo from the run-up to Iraq, reporting that the US was shaping the intelligence to fit the policy, seems to have been simply correct.

Was this a form of panicking? That's certainly one way to understand it. The one-percent solution then is the theoretical rationalization of this fear by a smart man, Cheney. No one engaged in real decisionmaking can ever treat every one-percent risk as a certainty, because that would mean we had nothing left with which to deal with the risks that really were certainties. So to the extent anyone believed this formulation, they were overwrought by the situation they faced. That's not a good thing, in the people leading a war (or any other difficult situation, for that matter).

Our leaders surely were scared -- and part of Suskind's point is that they had good reason to be. But to read the one percent doctrine as panicky may underestimate Cheney, and miss the significance of George Bush. As Suskind tells the story of these years, Bush emerges as by no means negligible. Cheney may have been the theoretician, and the up-close-and-personal bureaucratic infighter (and the internal bureaucratic politics were ferocious), but Bush makes his own contribution. He emerges as an intuitive decisionmaker, who reacts to the personal side of situations. He's also confident of his own righteousness and his religious faith. All this is familiar by now, though Suskind powerfully suggests that the net result was essentially a disregard of rational policy analysis, an indifference gradually making itself felt through the government. (308)

But what's most striking is a story Suskind tells of Bush deliberately fouling the opposing team captain during a Harvard Business School basketball game. The team captain, years later, talks to Jeb Bush (George W's brother), and Jeb says, "In Texas, they call guys like George 'a hard case.' It wasn't easy being his brother, either. He truly enjoys getting people to knuckle under." (215) Suskind makes the obvious point -- that other people didn't like being forced to knuckle under, and that the result of behavior like the invasion of Iraq and the abuses at Abu Ghraib was to build hatred of the United States.

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.

Meanwhile, there's bin Laden. Many people have wondered why Al Qaeda did not stage more attacks on the United States in the years after 9/11. This worry now seems, unfortunately, to be a thing of the past, for the more autonomous cells of the broad Al Qaeda orientation -- whose independence of action is itself partly the result of our successfully disrupting the more centralized operations Al Qaeda could mount earlier in the decade (as Suskind recounts) -- now seem to be quite interested in attacking here. The failed car-bomb in Manhattan this year, and the failed Christmas airplane attack in 2009, attest to this. But why not earlier, during Bush's first term in office? Suskind reports an intelligence consensus that al Qaeda might not have been trying to attack us during this period. (302-04) Perhaps 9/11 itself was a miscalculation on their part, and attacks elsewhere were better calculated to drive us out of the Muslim lands. And then, remarkably, bin Laden speaks on October 29, 2004, almost on the eve of the 2004 US election. Abusing Bush at length, and briefly sneering at Kerry, he was -- according to Suskind's account of the CIA's analysis -- clearly trying to promote Bush's re-election. Reporting on a high-level CIA meeting that day, Suskind says that Jami Miscik, who was deputy associate director of intelligence under Tenet (13), and who would leave or get forced out after Tenet's mid-2004 departure and after she crossed Cheney after the election, "offered" that "'Certainly ... he would want Bush to keep doing what he's doing for a few more years.'" (336)

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.

Metering the right to water in South Africa

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.

Statutory interpretation in Holder v. Humanitarian Law Project

I wrote in yesterday's post that I am inclined to agree with Justice Breyer's conclusion, in his Humanitarian Law Project dissent, that the application of the "material support" law to such speech as training in peaceful dispute resolution techniques was unconstitutional. Having reached this conclusion, however, Justice Breyer goes on to invoke a canon of statutory interpretation that calls for reading statutes so as to avoid serious constitutional problems where such an interpretation is "fairly possible." (Breyer, dissenting at 17.) He then argues that it is "fairly possible" to construe the material support statute to require the government "to show, at a minimum, that ... [the] defendants provided support that they knew was significantly likely to help the organization pursue its unlawful terrorist aims," or that it was their "'conscious objective' (or purpose) to further those same terrorist ends." (Id.)

This effort to avoid the constitutional problem posed by the statute is problematic, I think, for two reasons.

First, it is not entirely clear what the limiting interpretation means. Breyer has already argued that the slim chance that training terrorist organizations in peaceful dispute resolution systems would promote terrorism is not, in general, a constitutionally sufficient basis for prohibiting such speech. But what if the trainers actually knew that the training they were providing was "significantly likely to help the organization pursue its unlawful terrorist aims," or had the conscious purpose of helping the organization achieve its unlawful terrorist aims? One answer might be that if these facts are proven, then indeed the trainers are guilty of violating the statute, and as a general matter Breyer endorses precisely this answer, at page 18 of his dissent.

But he qualifies this answer in one respect. At pages 17-18, he says that "knowledge or intent that this assistance (aimed at lawful activities) could or would help further terrorism simply by helping to legitimate the organization is not sufficient." In support of this limit, Breyer invokes arguments he has earlier presented, to the general effect that the First Amendment protects certain forms of speech -- such as membership in an organization which has unlawful objectives, so long as the member herself supports only the organization's lawful goals -- despite their potential legitimating impact on everything the organization does. But Breyer's qualification goes further than that argument seems to justify. If indeed someone intends to "help further terrorism" by legitimating the terrorist organization, why shouldn't that person's efforts count as unlawful "material support"? Perhaps just knowing that this would happen shouldn't take one outside the First Amendment's protection, but intending it seems like a crime.

There is another internal oddity to this interpretation. The statute bars knowing provision of a wide range of forms of material support, but Justice Breyer would apply his special requirement -- the government prove the defendant's knowledge or purpose of furthering terrorism -- only to material support by speech or association. Distinguishing other forms of material support, such as the provision of currency or property, he writes that "[t]hose kinds of aid are inherently more likely to help an organization's terrorist activities, either directly or because they are fungible in nature. Thus, to show that an individual has provided support of those kinds will normally prove sufficient for conviction (assuming the statute's other requirements are met). But where support consists of pure speech or association, I would indulge in no such presumption." (Breyer, at 20.) This logic not only means that the same statutory language calls for different kinds of proof of the defendant's state of mind depending on which form of support he or she is alleged to have provided (as the majority critically observes, at 12), but it also seems to say that knowledge or intent is actually required in all cases, yet can be presumed to exist in the non-speech/association cases. Presuming an element of a criminal offense, however, is itself problematic. Perhaps, though, Justice Breyer meant only to say that provision of other forms of support is so inherently blameworthy that it can be criminalized without requiring any requirement that the actor know or intend his/her acts to aid terrorism -- rather than to say that such knowledge or intention must be present, but can be presumed.

Second, and putting to one side the problems just discussed, it is also not clear that the statute can bear this interpretation -- that is, it's not clear that this reading is indeed "fairly possible." Breyer's argument for it is ingenious. He says that the statute prohibits only material support, that "material" means "being of real importance or great consequence," and that "if the statute applies only to support that would likely be of real importance or great consequence, it must have importance or consequence in respect to the organization's terrorist activities." (Dissent at 18-19.) Since the statute penalizes only "knowingly" providing material support, he reasons, the actor must have known that the support he or she was providing was material, or in other words that it was "significantly likely to help the organization pursue its unlawful terrorist aims."

The problem with this interpretation is that despite its logical appeal, it does not take account of another section of the statute. The prohibition on knowing provision of material support appears in 18 USC 2339B(a)(1). The definition of material support is in a separate provision, section 2339A, but in 2339B(a)(1) itself Congress provides that "[t]o violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity..., or that the organization has engaged or engages in terrorism..." (ellipses in the quotation by the Court, majority opinion at 11). With this language, the Court writes, "Congress plainly spoke to the necessary mental state for a violation of [section] 2339B, and it chose knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities." (Id.) The majority also notes that Congress wrote state-of-mind requirements akin to Justice Breyer's into other, related statutory provisions, but did not include them here. (Majority opinion at 11-12).

To decide whether 2339B(a)(1) made Justice Breyer's interpretation not "fairly possible" is to make a judgment rather than a statement of fact. The meaning of "fairly possible" is itself subject to interpretation and might be read with great flexibility. Justice Breyer cites an earlier case apparently equating "fairly possible" with "not plainly contrary to the intent of Congress," and two other Supreme Court cases whose understanding of "fairly possible" sounds very broad indeed. (Breyer, dissenting, at 21-22.) Moreover, there are few, if any, absolute rules of statutory interpretation, and so again the dimensions of what is "fairly possible" must always be subject to argument. Finally, Justice Breyer points to several moments in the legislative history of the statute that are consistent with his interpretation (id. at 20-21) -- though in contemporary Supreme Court jurisprudence the status of legislative history as a guide to interpretation is dubious.

I would be inclined to read the text as too clear to permit Justice Breyer's interpretation if it were not for one further provision of the text itself: section 2339B(i), which says that "[n]othing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States." Read literally, this provision directs the courts not to adopt any reading of the rest of the statute that would violate the constitution. Can it be read literally? Perhaps not. It may be that the separation of powers between the legislature and the judiciary bars Congress from telling the courts to say that night is day so as to avoid a breach of the constitution. Perhaps the bounds of interpretation remain what is "fairly possible." But I would see this statute as at least directing the courts to understand the bounds of their "fairly possible" interpretive discretion as broadly as ... possible, and with that interpretive boost I conclude, in the end, that Breyer's interpretive move is fundamentally appropriate. It remains somewhat internally problematic, however, for the reasons I explained earlier.

The question of statutory interpretation, in any event, is not the central one posed by the case. The key issue is the meaning of the constitution. On that, as I've said, I think Breyer has the stronger argument -- though I will have more to say about the arguments on the constitutional issue in a future post.

The Supreme Court's decision in Humanitarian Law Project

This past Monday, June 21, 2010, Holder v. Humanitarian Law Project, the Sureme Court upheld the constitutionality of the criminal prohibition against "material support" to terrorist organizations even when the material support takes the form of "speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations." (Majority opinion at 21)

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.

Lawyers against torture -- inside the Bush Administration

While Jane Mayer's The Dark Side tells a story of lawyers opening the gates to torture, it also tells a story of lawyers bravely opposing that. Mayer herself sums up by saying that "many Administration insiders ... had fought valiantly to right what they saw as a dangerously wrong turn." (334) Not all of these were lawyers, of course, and I don't at all suggest that commitment to law is the only path to commitment to principle (far from it). But lawyers are among the central figures in what was, after all, in good part a dispute about the bounds of law.

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.