Friday, July 23, 2010
Saturday, July 10, 2010
Humanitarian Law Project and deference to the political branches in foreign affairs -- the majority's view
So what does Humanitarian Law Project say about the degree of deference to be paid to the political branches in deciding whether the law prohibiting material support to designated foreign terrorist organizations can be applied to speech?
Chief Justice Roberts’ opinion for the Court does not begin by invoking deference. Instead, at pages 24-28, he examines in some details the reasons why, in his judgment, the statute’s view that at least some forms of speech amount to material support is correct. One can disagree with his analysis, but as presented it is indeed his (and the majority’s) analysis. It’s of some importance, I think, that Justice Roberts begins this way.
His next step, however, is to explain why “we do not rely exclusively on our own inferences drawn from the record evidence. We have before us an affidavit stating the Executive Branch’s conclusion on that question,” a conclusion “‘strongly suppor[ting]’ Congress’s findings that all contributions [including nonmonetary contributions] to foreign terrorist organizations further their terrorism…. That evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference.” (28-29)
But it is important to emphasize that Chief Justice Roberts does not assert that complete deference is called for. “It is vital in this context ‘not to substitute … our own evaluation of evidence for a reasonable evaluation by the Legislative Branch,’” he writes, quoting an earlier decision. Deference is owed not to any evaluation, but to reasonable ones. Roberts writes that “[w]e are one with the dissent that the Government’s ‘authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.’” (29) And later he declares that, “At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization – even seemingly benign support – bolsters the terrorist activities of that organization. That judgment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it.” (31) This too is the language of measured rather than complete deference.
What, concretely, does all this mean? For Chief Justice Roberts, an important part of the answer seems to be “that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess. The dissent slights these real constraints in demanding hard proof – with ‘detail,’ ‘specific facts,’ and ‘specific evidence’ – that plaintiffs’ proposed activities will support terrorist attacks.” (29) Here, I think, we are at the crux of the matter: the government’s judgments emphasize potential risks not specifically demonstrated, and the question is what to do about these possibilities.
This is the problem of the one-percent doctrine (though I am not saying that the Supreme Court majority embraced that extreme idea): what should we do when we’re not sure? The one-percent doctrine stated that we would treat essentially every risk as equivalent to certainty. As I’ve written in a previous post, that idea didn’t really make sense even in command decisionmaking. Nor would it make sense in law, where a great deal of effort has gone into trying to fashion standards for decisions about the meaning of uncertain evidence.
Broadly speaking, the First Amendment response to uncertainty has been that when we regulate speech because of its content we must have strong reason to believe that the regulation is called for. The majority here makes clear that it considers the material support statute, as applied to speech, to be a regulation based on content, because not all speech is prohibited, only that speech to terrorist groups “that imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’ (22).
But what if the “speech” in question is actually expressed via conduct – such as the speech involved in burning one’s draft card? A 1960s case about draft-card burning approved a less-demanding standard of review than “pure speech” cases require. Here, the majority rejects the plaintiffs’ argument that the statute regulates “pure political speech” – on the ground that completely pure speech, speech uttered independently of any terrorist organization, is not subject to the statute (20). But even if we think of speech that provides material support to terrorist organizations as “conduct” of a sort, the majority emphasizes that “the conduct triggering coverage under the statute consists of communicating a message.” (23) On that basis, the Court appears to conclude that “‘we must [apply] a more demanding standard” of scrutiny – though the Court never actually specifies what that standard is. Justice Breyer in dissent spends some time on the question of just how demanding a standard should be employed, but ultimately concludes that “I doubt that the statute, as the Government would interpret it, can survive any reasonably applicable First Amendment standard.” (Dissent at 6-7)
We are dealing, then, with a heightened-scrutiny context – in other words, one where the benefit of the doubt must be given to the speaker. It appears that the Supreme Court is unanimous on this score. (A partial qualification: the Court notes an argument by the government that “speech coordinated with foreign terrorist organizations” is like “speech effecting a crime, like the words that constitute a conspiracy.” 22 n.5. This argument could mean that such speech “triggers no First Amendment scrutiny at all.” Justice Breyer, in dissent, emphatically declares that “[n]ot even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.” (Dissent at 5.) The Court doesn’t express any attraction for the Government’s proposition, but also does not reject it on the merits; it declines to “consider any such argument because the Government does not develop it.” Id.)
But how much benefit, of how much doubt? In my next post on this case, I’ll take up the dissent’s answer to this question.
Friday, July 9, 2010
Tax deductions for support to West Bank settlements and the courts' role in reviewing foreign policy judgments
A New York Times article by Jim Rutenberg, Mike McIntire, and Ethan Bronner, "Tax-Exempt Funds Aid Settlements in West Bank" (published July 5, 2010) provides an ironic counterpoint to the "material support" statute. Although US foreign policy, at least as articulated by the Obama Administration, firmly opposes Israeli settlements on the West Bank, many Americans are actively supporting these very settlements, some of them with their own labor in the settlements, some with tax-deductible donations. (There are limits on what activities can be supported with tax-deductible donations – and there are questions about whether those limits have been obeyed – but it seems clear that some donations are fully entitled to tax deductibility.)
Why are these donations tax-deductible, while material support to designated terrorist organizations in the form of money or even in the form of training in use of peaceful international dispute settlement mechanisms is criminal?
One answer might be that our interest in suppressing designated terrorist organizations is “compelling,” while our interest in preventing expansion of Israelis’ West Bank settlements is not. But why would that be so? One plausible answer would be that the designated terrorist organizations are a grave danger to the United States, while the Israeli settlers are not. This may in fact be true, but it’s hardly self-evident. The settlers, some would say, are contributing directly to the rise of Islamic hatred of Israel and the United States, and thus are a cause of the terrorist threat we face today. Meanwhile, the Kurdish PKK and the Tamil LTTE might disclaim any hostile intent towards the United States (as the settlers no doubt would as well). While the PKK and the LTTE may be dangerous to countries with which we wish to maintain friendly ties, and material support to them from US citizens might therefore have foreign policy repercussions, it’s not certain that those repercussions are greater than the ones resulting from US citizens’ support for the settlers.
It’s hard for me to see how a court could assess which set of foreign policy impacts poses the graver problem for the United States. If that’s so, then perhaps all that a court can usually do is to ascertain whether both political branches concur on an objective. If Congress and the President agree on something, it’s more compelling than if only one branch or the other endorses it. If one branch supports it while the other overtly opposes it, the case for “compelling” status might be even weaker. Putting such weight on whether the two branches are in agreement or not is true to the teaching of Justice Jackson’s 1952 concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), a very influential guide in this area.
But perhaps the two branches concur on the need to block further settlement expansion. (There surely are members of Congress who don’t agree – but unanimity isn’t what’s required. We can, in theory, go to war based on a declaration of war that gathers 50% plus one of the votes in the Senate and the House.)
If the goal is agreed upon, and if we assume that that agreement by itself qualifies it as a compelling objective rather than just, say, an “important” or “legitimate” government objective, then why is tax-deductible support for the settlers permitted? Presumably the answer would be that barring material support to settlements is not necessary to achieve our foreign policy objective of blocking continued settlement expansion.
Perhaps barring material support -- even labor and money -- isn't necessary to stopping the expansion of the settlements. Perhaps banning material support -- even speech, such as training in the use of international dispute resolution mechanisms -- is necessary in the context of designated terrorist organizations. But how would one ever prove either of these propositions in a court?
One answer to that conundrum is for courts simply to defer to the political branches' judgments, either by refusing to assess them (for example, by calling such matters nonjusticiable "political questions") or by assessing them but more or less automatically accepting the political branches' judgments.
But there are other possibilities, to which I'll return, with the help of a discussion of how much deference the Humanitarian Law Project majority and dissent give to the political branches’ foreign policy judgments.
Monday, July 5, 2010
Sunday, July 4, 2010
The answer, Cheney's answer, was the one percent doctrine. Suskind reports Cheney formulating it in these terms: "'If there's a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response,' Cheney said. He paused to assess his declaration. 'It's not about our analysis, or finding a preponderance of the evidence,' he added. 'It's about our response.'" (62)
Suskind's book has no footnotes, and so does not even cite "Interview with CIA officer" or similar sourcing. Reading the book, however, I have the feeling that many of his sources were in the intelligence community, and in particular in senior ranks of the CIA. This book portrays the CIA, and George Tenet (its director, originally appointed by Clinton, who was kept on the job by Bush), in a quite positive light. The CIA struggles to insist on the analytic facts, to which the White House is almost indifferent. Tenet protects his people (190-91), takes the fall for Condoleezza Rice and others in public (309), works his particular personal magic with spies and dictators from around the world on our behalf, and makes the war-fighting decisions (such as ordering Predator strikes) for which the CIA is now responsible. He also, of course, must be responsible for the CIA's abusive, at least sometimes torturous, and apparently largely fruitless interrogation methods -- which began, Suskind tells us, with one Abu Zubaydah. "[T]he United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered." (111) There is, of course, more than one side to this story -- Tenet has been criticized as Bush's enabler, while after his departure the administration purged the CIA of those it considered insufficiently loyal (331). But the picture of Tenet and his aides as the people actually on the front lines, making very hard choices and sometimes wrongly, but still trying to address the impossible threats we faced in a coherent way, is quite persuasive.
Time is not on our side, Suskind feels. "The model of the modern Islamic terrorist -- seasoned by violent ideology and frustration, supported by ready access to information and means of destruction, driven toward an end of martyrdom -- is an elegant construct, easily replicable, difficult to counter." (340) There clearly are no short-term fixes. Many people knew this, but perhaps it is a measure of the sense of comfort and prerogative America had that we collectively opted for what amounts to an effort at a quick fix. Or perhaps it is not a measure of America's soul but just a product of its politics, that led -- for reasons having almost nothing to do with the threat of terrorism -- to George W. Bush ascending to the White House. In any event, we or our leaders decided to try something quick (or at least drastic): Change the balance of world order, we thought, and things will be different. They weren't. Suskind's overall point is that we were extremely frightened, but that the way we reacted ultimately took us far from the sources of principle and wisdom that we need to be ourselves, and to struggle over a long haul.