Marking the path of the law -- on values and emotions in the work of judges

I'm posting here the abstract and a link to Marking the Path of the Law, an article I've just published, in which I discuss the role of values and emotions in the decisions judges make as they interpret a constitution. The article focuses on South Africa in particular, but I think what's true there is true for the U.S. and probably elsewhere as well.

Here's the abstract:

This article, published in South Africa’s Constitutional Court Review, focuses on the Constitutional Court of South Africa in order to discuss the nature of constitutional judging more generally. Looking to Brown v. Board of Education as an example, it argues that technical skill – though obviously important – is not the highest virtue of the constitutional judge, and that a central attribute of constitutional judging is commitment to the values of the constitution. But commitment to values is more than a matter of rational assent. As everyday experience and neurological evidence teach us, commitment naturally and unavoidably involves, the judge’s emotions as well.

Once we acknowledge that emotional commitment to values is crucial to judging, how can we avoid the danger that emotional commitment will become over-commitment and lead a judge to unjust decisionmaking? Some familiar answers are important but insufficient. Thus even when constitutional values are spelled out in the constitutional text itself, as in South Africa’s constitution, they are predictably too capacious to narrowly bound judges’ decisions. Empathy, a bridge to help judges understand others, unfortunately works best with those most like ourselves, and must in any case be held in some check if judges are to make the necessarily hurtful decisions they must. Practical wisdom, as characterized by Anthony Kronman, seems not to encompass the sometimes transformative role of lawyers and judges. Judicial independence must be mixed where appropriate with judicial deference, and in any case is itself a value to which judges may be emotionally over-committed.

If these answers are insufficient, is there any other protection available? Reflecting on a particularly fraught case on which the Constitutional Court had to rule, the article turns to an old idea, judicial objectivity, and urges that it is not the absence of emotion but the proper cabining of emotion. That capacity, in turn, rests both on the personal traits of individual judges and on an institutional practice, the “discipline of the law”: the requirements of transparency, deliberation and reasoned justification that constrain the process of hearing and deciding cases and that are, ultimately, a part of the larger rule of law itself – the path of the law (to use Oliver Wendell Holmes, Jr.'s phrase).

Finally, in light of this understanding of the role of constitutional judges, the article turns to the question of law schools’ role in preparing students for their responsibilities as lawyers and judges in a constitutional state. The article argues that the practice of law is itself a constitutional function, so that properly understanding what to do as a lawyer entails the study of the constitution – a point South Africa’s far-reaching constitutional doctrines underline. But responsible practice, again, is not just a matter of skill and knowledge. The article maintains that what prepares students for the moral responsibilities of judging is to begin to take responsibility themselves, and concludes with a call for increased use of clinics and similar teaching approaches to guide students’ apprenticeship in practice.

The killing of bin Laden and justice

I've argued that the killing of bin Laden was legally justified. But was it justice, as President Obama declared?

The U.S. has not asserted that the killing of bin Laden was carried out as a punishment for his crimes, and extrajudicial punishment would clearly be illegal under international law. We have defended his killing, instead, as a legitimate act of war – and I’ve argued in my three previous posts that it was lawful.

But it seems fair to say that in assaulting bin Laden's compound in Abbottabad, we did not hope to bring him back for trial. If that had been our goal, then our forces in the house would have risked their own safety, if necessary, in order to capture him alive -- and that does not seem to have happened. Should we have done that?

There is a powerful precedent saying we should have: Nuremberg. We considered summary execution of the Nazi leaders we had caught at the end of World War II, and deliberately decided against it. Trials, we felt, were the way to express the world's condemnation of the Nazis' crimes. I doubt that we were much more certain of bin Laden’s guilt than of the Nazis' -- and in any case being convinced is not the same as convicting someone. So if a trial was the way to condemn the Nazis, why not bin Laden? The answer may be that there are at least two dramatic differences between the situations then and now.

First, it is quite possible that our evidence against bin Laden was tainted. If enhanced interrogation techniques -- torture -- played some role in the long investigation that found bin Laden (as advocates of those techniques have been arguing), they might well have played a role in our accumulation of the evidence of his guilt too. Perhaps we had other evidence, but perhaps not enough. If not, then we either could not have tried him, or we would have had to try him in a tribunal designed to permit exceptions to rules of process that we normally consider binding. Such a tribunal -- a military commission, as we have shaped that institution -- would have lacked legitimacy in the eyes of the world, precisely to the extent that it departed from those normally binding rules. The fact that it likely would have been held at Guantánamo would have added to its illegitimacy. (Why would it have been at Guantánamo? Because the Congress that hasn't been willing to permit anyone to be moved from Guantánamo to the US for trial likely would have been at least as leery of bringing bin Laden to a court inside the US.) It might be said, and rightly, that we have brought this problem on ourselves; but having done so, we may have robbed ourselves of the ability to try bin Laden in a way the world would consider legitimate.

Second, the war is not over – and for this I do not think our actions during the war can be seen as responsible. Nuremberg was a trial organized by the victors to justly punish those we had defeated. I imagine that the audience to whom the trials were directed was, first and foremost, the peoples of the world whom the Nazis had tormented through the war – though I’m sure it was important, then and thereafter, that even the people of Germany see some measure of justice in what was done. But here the struggle between the United States and the supporters of Al Qaeda, more broadly the delicate process of charting a relationship between the West and the world’s Muslims (whom I do not at all equate with Al Qaeda), is still underway. The sentiments of the world’s audience are far more mixed than they would have been after World War II. A trial of bin Laden, especially one with legitimacy problems of its own, might have been a vindication of him rather than a step in the world’s repudiation of his crimes.

So can we say that justice has been done? Certainly not legal justice – that would have required a trial. Surely poetic justice – those who unjustly cause the deaths of thousands of others should pay for what they have done, and it is fitting that a mass murderer should pay with his life. But that is a judgment not of morality so much as of fate.

As a matter of morality, did he deserve to die? I am not sure what, if anything, forfeits a person's moral right to live or who, if anyone, is entitled to enforce the forfeiture. If the death penalty is ever morally justified, however, war might be the place. In war, soldiers’ lives are taken simply because they are the enemy, with no suggestion or imputation of fault at all. In the world of war, it may be that fault -- great crimes, in particular -- should be a basis for taking life too.

But whether or not, in the ultimate light of morality, bin Laden deserved to be executed, he surely deserved to be condemned and sternly punished. (So I believe; clearly not everyone in the world agrees. So I acknowledge that I am arguing based on my view of justice, not based on an account of justice that commands universal assent.) Nuremberg provided a way to condemn and punish after World War II, but for the reasons I’ve suggested it’s not at all clear that a trial of bin Laden would have worked well to accomplish those goals. Put bluntly, punishment might have been imposed, but condemnation might not have been.

It seems possible, therefore, that the death he suffered – though justified legally not as punishment but as military action – was at the same time as close to the imposition of justice as we could get in the real world in which we live. Possible, but not certain. A flawed and controversial trial might in the long run have been a wiser choice, and certainly would have been more in consonance with the growing worldwide effort to subject war to judicial limits. We do not yet know, just as we do not know whether what we did will prove to have been the most effective strategy just as a matter of realpolitik, a concern Professor Amos Guiora raises here.

But I think we do know one thing. The killing of bin Laden smashed his image of brilliance and invulnerability, silenced him and exposed him to mockery. Those emotional impacts of his death suggest that the justice done in his killing was, in part, justice of a particular kind, an old kind: revenge.

The killing of bin Laden and the law of war, Part III

In my last two posts I've argued that it was lawful to mount a military attack on Osama bin Laden. But that doesn't mean that it was lawful to do simply anything to him. So here I want to ask if the particular attack we mounted was lawful. I have to say at once that here I'm on unfamiliar legal ground, so I'm trying to reason this out rather than to state conclusively what the law is. Here, at any rate, is what I think:

It’s a violation of international law to kill an enemy who has surrendered.

But it’s not a violation of international law to kill an enemy by a method that leaves him or her no opportunity to surrender – for instance, by sniper bullet or by aerial bombing.

Suppose, however, that you choose a method of attack that eventually brings you face to face with your intended target and makes it possible for you to offer him the chance to surrender. Do you have to actually make that offer in some overt way? The answer must be no – while you’re offering him the option of surrender, he could launch his own attack on you.

But is he entitled to a chance to surrender? That is, must the attacker pause long enough so that the targeted person actually can surrender – can say, “I surrender,” or can put his hands in the air? The answer, as I understand it, is that the attacker need not pause even for an instant if he has reason to fear for his own safety if he does so. The military attacker can err, and err strongly, on the side of protecting himself, and need not put himself at risk in order to give the person under attack a chance to surrender.

At the same time, it seems to me that if the attacker can offer the opportunity of surrender, and does not believe that doing so would put him in any danger, then he must do so. He cannot shoot someone who could not possibly have expressed his surrender before the bullet’s impact. That follows, I would think, from the law-of-war principle of proportionality – because this shooting is a killing that is not necessary to, hence isn't proportional to, any military objective. Capture, after all, is essentially as effective as killing as a way to remove the adversary from the war. (“Essentially” rather than “absolutely” because there’s always the possibility of escape – but if that possibility were considered to shift this calculus then it would be legal to shoot people after they had surrendered, and it isn’t.)

But isn’t it possible that the adversary, in captivity, will be even more of a cause célèbre than he would be in death? And couldn’t a warring state want to avoid the tremendous problems that its adversary may pose even within prison walls? The answer to both of these questions is surely “yes.” Moreover, Osama bin Laden’s case is the classic illustration: as a potential defendant, he would have been a nightmare for the US for years to come.

But much as it might have been in the United States' interest for bin Laden not to survive the attack, I don’t think this was something our soldiers were permitted to take into account when they entered the compound. Their job, if I understand the law in this context, was to execute a military mission, and once they were in that compound, on the ground, in purely immediate military terms a completely safe surrender would have been as much a success as a killing. And so I take it that if we had mounted a mission in which our SEALS forces were directed to kill him without giving him any opportunity to surrender, even if that opportunity could be given at no risk to themselves, then it would have been illegal. I say this without citation of authority, I admit, and hope to learn more – but I think this is what the logic of the situation suggests.

So in that case the question is whether we did deny bin Laden an opportunity to surrender, and if we did, whether that was justified by potential danger to our forces. As to the question of whether we denied him an opportunity to surrender, a Los Angeles Times report from May 3, 2011 comments that:

CIA Director Leon E. Panetta said in an interview on PBS television Tuesday [May 3, 2011] that he did not believe Bin Laden had a chance to speak before he was shot in the face and killed.

“To be frank, I don’t think he had a lot of time to say anything,” Panetta said.

The impression this comment leaves is that indeed bin Laden did not have time to surrender – although that’s not quite obvious. Perhaps if bin Laden had immediately raised his arms or fallen to his knees, the soldiers wouldn’t have opened fire. But perhaps not. According to the same report, “a senior congressional aide brief on the rules of engagement [added]: ‘He would have had to have been naked for them to allow him to surrender.’”

Why? Again from this report, interviewing a special forces officer:

"If anyone feels in any way that there is a hostile threat in a case like this – it can be a movement, or a failure to follow commands – deadly force will be authorized. It’s a judgment call," the officer said. "And these assaulters are some of the finest, most highly trained in discriminate shooting. They train in hostage rescue."

Underneath bin Laden’s clothes there might have been a suicide vest, or some other weapon, and in any instant in which he did not obey commands, he might have used those hidden resources.

So when the SEALS assaulter or assaulters entered the room where bin Laden was apparently holed up along with one of his wives, they were authorized to shoot without any pause whatsoever if in any way he appeared to pose a hostile threat. Apparently, however, there was a pause. Again from the L.A. Times report, according to a White House spokesman, Jay Carney, “In the room with Bin Laden, a woman – Bin Laden’s wife – rushed the U.S. assaulter and was shot in the leg but not killed . . . . Bin Laden was then shot and killed. He was not armed.”

So there was time for a woman bin Laden's wife to charge the U.S. soldier, and time for him to shoot her, but in a way that seems deliberately designed not to kill her. Then the U.S. soldier shot bin Laden twice in the head, an action that seems deliberately designed to kill him.

Given that sequence of events, was there legal justification for the fatal shots? Or did we simply intend to kill him all along? I find it reassuring that (according to a N.Y. Times report on May 9, 2011) we had a team of "lawyers, interrogators, and translators" ready to meet on a Navy ship to undertake bin Laden’s interrogation if he was captured in this operation. To me that indicates that capture was a real possibility, that surrender would have been accepted and could somehow have been accomplished. And so I think that "the U.S. assaulter" did not enter bin Laden's room with the settled intent to kill him, but rather with the intent to kill him unless he demonstrably posed no danger and was surrendering.

I think that standard was lawful. Did the assaulter lawfully apply it? Even though the facts as we know them do not demonstrate that in fact bin Laden had to be killed, still in the heat of this moment I think it was legitimate for the U.S. attacker to see bin Laden as still a potential threat – and to distinguish that threat from the threat that his wife had posed a moment earlier – and to act on that. This is self-defense carried to its ultimate, fierce extreme, self-defense in which the burden of proof, and a heavy one, has been placed on the target of attack. It is worryingly close to a plan to kill. But war is fierce, and so I take this attack to be within the bounds of the law.

The killing of bin Laden and the law of war, Part II

In my last post I said that the killing of bin Laden was an act of lawful self-defense, because we could legitimately pursue and attack bin Laden wherever we found him.

I still think that's correct, but the argument I made there, that killing bin Laden was lawful self-defense even though it took place outside any pre-existing conflict zone, only holds if indeed bin Laden was an enemy combatant, and if the attack on him did not violate the rules governing how such attacks are carried out. In this post, I'll ask what might seem an absurd question even to raise: was bin Laden an enemy combatant?

Let's begin here: the idea that we could attack bin Laden anywhere rests on the assumption that he remained a combatant under the law of war. Enemy generals can always be attacked -- but not if they've retired because of their injuries and now reside in assisted living facilities. Criminals can be arrested for their crimes -- but I believe what we undertood in Abbottabad was military attack, not law enforcement, and if bin Laden counted as a retiree, he wasn't subject to military attack.

I've seen it suggested by a scholar quoted in Der Spiegel 10 days ago that indeed it was not clear that bin Laden still played enough of a role as a military commander to qualify as a combatant subject to attack. Now, after the fact, the sheer quantity of information we seized from his compound, and the reports that he had contemplated attacks on US railroads as recently as 2010, suggest that he was still in the business. Nevertheless it seems quite possible that at the time of the attack he was not much engaged in whatever plans were then being hatched. He may have been "in the business," but not very directly; a Los Angeles Times report after the attack says that bin Laden "no longer ran day-to-day operations of the terrorist network he had founded. But he continued to secretly send strategic guidance to affiliate groups scattered around the globe, officials said." Moreover, it seems certain that we weren't certain of his role -- after all, President Obama has said we were not even sure that bin Laden was in the compound rather than, say, a "wealthy ... prince from Dubai."

But the argument that this uncertainty meant we could not lawfully attack bin Laden seems wrong to me on two grounds. First, we had no reason to believe he had "retired." What had happened to him was that he had been constrained -- by us. Fleeing the danger of attack, he went into hiding, and from hiding he perhaps could not take an active role in shaping new attacks. But if that meant we couldn't attack him, in effect the law of war would give a free pass to those who are so harried by their enemies that they lose effectiveness. Since the point of war is to take away the enemy's effectiveness, it would be perverse to say that success in doing so immunizes the enemy from attack. Of course, if the enemy surrenders then they absolutely are entitled to immunity -- but hiding out is not the same as surrender. (What if what happened was not that bin Laden was harried into ineffectiveness, but that Al Qaeda -- perhaps as a result of our initial attacks -- evolved into a network of loosely connected terrorists rather than a military force with a definable location? I'd view that change, also cited in Der Spiegel, in a similar way: an enemy shouldn't be able to choose for tactical reasons to edge away from an armed conflict once it's begun, and thereby escape a military response to its actions.)

Second, the idea that our uncertainty about bin Laden's level of activity barred us from attacking him seems to add a special and unreasonable barrier to attacking terrorists. To see why requires looking at the the question of whether terrorists are ever "combatants" subject to military targeting.

There is an important policy question about whether it is wiser to treat the struggle against terrorism as law enforcement or war. There is also a parallel legal question. Terrorists are arguably civilians -- civilian criminals, to be sure, but subject as criminals only to law enforcement actions rather than military attack. Even civilians are in some circumstances subject to military targeting, but those circumstances are limited: it's widely felt that military targeting of civilians is unlawful "unless and for such time as they take a direct part in hostilities," to quote Article 51(3) of Additional Protocol I of the Geneva Conventions. (The US has not ratified this treaty, though we evidently view much of it as binding anyway, on the ground that it has acquired the status of international customary law.) It follows that once these civilian fighters are back home and resume civilian life, they once again are subject only to law enforcement, not military action.

These rules in effect protect amateurs who get involved in combat. But -- to briefly restate a longstanding argument -- if they also protected professionals, who could assume the guise of civilians in between battles, and shed it only at times and places of their own choosing, then the rules would give those professionals an advantage over lawful combatants. To protect terrorist professionals from military targeting in between engagements seems especially perverse since the moments of combat that terrorists choose to engage in are likely to be unlawful uses of force in themselves (among other reasons, because terrorists frequently are deliberately targeting civilians -- a forbidden step in war, much as civilians inevitably suffer from the collateral effects of attacks on legitimate military targets).

Exactly who should count as deeply enough involved in military effort to be legally a combatant rather than a civilian is a complex matter. But the US has insisted that Al Qaeda terrorists are indeed combatants, not just when they strike but all the time. And the idea that members of irregular forces can lose their civilian status has drawn support from interpretive guidance adopted in 2009 by the International Committee of the Red Cross.

The ICRC guidance reasons (perhaps controversially) that civilians who are engaged in a "continuous combat function" are to be viewed as combatants all the time -- and therefore are subject to attack at all times as well (as soldiers in a regular army at war are). I would say that bin Laden, in creating and leading a worldwide terrorist network, had taken on a continuous combat function.

But once a civilian has taken on a continuous combat function -- and thus become legally a combatant rather than a civilian -- can he (or she) thereafter enjoy immunity from military attack unless the attacker has solid evidence that he hasn't given up his continuous combat function? It seems to me that a rule like that would restore the exact problem the "continuous combat function" idea was meant to address. By virtue of the requirement of continuous proof of continuous combat function, these fighters would in effect regain the protections of civilian status whenever there was doubt -- on the other side -- about their role. Since the other side is extremely unlikely to have up-to-date intelligence on its individual adversaries -- and of course it will be in the civilian-combatants' interest to keep their status as obscure as possible -- these covert fighters will have a significant, and undeserved, protection from military targeting.

It might be argued that if bin Laden was simply assumed to be a combatant, without current evidence, the result would be to defeat a crucial goal of international humanitarian law -- the effort to hold war within limits. That is a crucial goal. But it's not easy to see attacking Osama bin Laden, of all people, as really presenting this risk. In my opinion, he was, and we legitimately believed he remained, a combatant, subject to military targeting -- even though it might well be that he'd never fired a weapon in anger at least since he moved to his compound in Abbottabad, five years ago or more.

The killing of bin Laden and the law of war, Part I

I believe that the US is safer as a result of the killing of Osama bin Laden, and I am grateful for the skill and courage of those who ordered and carried out the attack on his compound in Abbottabad -- though we know that this death is far from the end of the struggle against terrorism, and I doubt that anyone's death is a cause for rejoicing.

Meanwhile, there are legal lessons to be drawn from this event. As I understand it, an important strand of law-of-war thinking holds that military force is only permitted in areas where hostilities are underway. Of course, the hostilities first have to begin -- but hostilities can only be brought to bear on the territory of a state if a legitimate justification for war exists. Thus we could go to war in Afghanistan because it harbored Al Qaeda. Perhaps we could go to war -- via drone strikes -- in parts of Pakistan which the Pakistani government did not effectively control, and in which Al Qaeda again had found safe refuge. But we could not, for instance, use military force in the streets of Hamburg against an Al Qaeda member found there, since Germany was fully able and willing to cooperate with us in taking lawful steps to root out terrorists on its soil.

Where does Abbottabad fall on this spectrum? Plainly there were no active hostilities in that city; one of the resident's of bin Laden's comfortable neighborhood describes it as being as close to Britain as you can get. Equally clearly, Abbottabad -- home to a Pakistani military academy -- is not beyond Pakistani government control. And we have not asserted (whatever we may believe) that Pakistan knew of bin Laden's presence in this city. Instead, the position we appear to have taken is that we did not have to seek Pakistan's consent if we felt doing so was risky to the operation, and that we could undertake the operation inside Pakistan not because Pakistan was demonstrably complicit in bin Laden's presence there but simply because bin Laden was in fact there. Our stance appears to have been that we could attack bin Laden wherever we found him if doing so was militarily necessary.

I don't quarrel with that position (which I think our government has adhered to over a considerable period). But assuming that we rest domestic authority for this action not on some inherent Presidential power to fight but on the Authorization for Military Force passed by Congress after the 9/11 attacks, our action in Abbottabad rests on the position that this statute's authorization for war truly has no absolute geographical limits. Assuming also that we maintain that our actions were in accordance with international law, the Abbottabad attack expresses our view that the international law of war authorizes the use of force not just in carefully delimited areas where hostilities are underway or can be initiated on the basis of state conduct, complicity or demonstrated lack of authority -- but wherever self-defense reasonably calls for action. Many international lawyers may view this stance as misguided, but as a fact of state practice it now must be recognized as an important assertion of the correct interpretation of this issue of international law.