Friday, November 25, 2011

Interpreting the torture statute's meaning, continued

Jeremy Waldron, in his book Torture, Terror and Trade-offs: Philosophy for the White House (2010), offers another argument against the President's right to ask his or her lawyers for a precise answer to the question of what conduct the torture statute actually forbids. Actually, he does not argue against the President's seeking precision; rather he argues against the President's treating the torture statute as a problem to be maneuvered around. Asking what the statute forbids isn't necessarily part of trying to circumvent it, and I don't take Waldron to be arguing that Presidents are barred from seeking precision if that is all they are seeking.

What Waldron is arguing is that Presidents have no right to treat law as something to undercut and evade. In this, Presidents are quite unlike ordinary citizens. Because the rule of law exists to protect individual freedom, Waldron argues (at 322), "there is a presumption in favor of individual freedom: everything is permitted if it is not clearly forbidden. It is not inapproriate for lawyers to help their clients navigate the legal system with this in mind--looking for ambiguities and loopholes, taking advantage of them where they exist, not going out of one's way to defer to laws whose application to a client's case is ambiguous or unclear."

Why are Presidents (and governments) different, on Waldron's account? Because government does not have a right to individual freedom; in fact, absence of law binding government creates peril for individual freedom. Government exists in large part to protect its citizens' freedom, and that freedom would not exist unless it included freedom from lawless government action, otherwise known as abuse of power. (322-23) "Government lawyers," therefore, "should not be in the business of looking for pockets of unregulated discretion or loopholes in such regulations as do exist. They should not be advising their political bosses that they are entitled to avoid the impact of legal constraint where it is ambiguous or unclear." (323-24) And he applies this approach even to the realm of international law, arguing that "[g]overnments are bound in this arena, as in any arena, to show themselves devoted to the principle of legality in all their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly." (329)

Waldron implies, however, that there may be exceptions to these conclusions. He writes (323 n.6) that "[t]he Rule of Law is just one of the normative ideals that apply to government action. Others, such as efficiency or even security may sometimes pull in a different direction." If security did present a more pressing claim than the rule of law in a particular situation, presumably the duties of a lawyer asked about the law could similarly shift -- unless it is the job of lawyers always to stand for the law, even if other actors (generals, perhaps) may legitimately choose to disregard the law's demands. Whether Waldron would allow lawyers some freedom of action on these grounds isn't entirely clear; he emphasizes that while lawyers do serve multiple goals, "we pursue justice and the social good through the Rule of Law, not around it or in spite of it." (320)

So: is it inconsistent with the rule of law for a government lawyer to try to limit the legal constraints on the government by employing the tools of legal argument and interpretation to construe those constraints to be as modest as possible? That's the loophole-finding, advantage-taking role Waldron finds quite appropriate for the lawyer representing an individual citizen, and quite inappropriate for the lawyer representing the government. If that role is indeed inappropriate for a government lawyer, then presumably those lawyers can offer the President only such legal arguments and interpretations as support the full implementation of the law as it's written, as well as the full realization of its underlying policy goals.

There is a lot to be said for the proposition that just laws and democratic choices deserve the full support of the government and its lawyers. But not all laws are just, nor are all democratic choices, and not all laws result from untainted democratic processes. What, then, are the obligations of the government lawyer who encounters an unjust or undemocratic law?

To be sure, one person's injustice is another's categorical imperative. Who is to say what is unjust and what isn't? As a general proposition, in legal representation it is the client rather than the lawyer who says what is desirable -- as long as the bounds of the law are not breached. With a lawyer for the President, this general rule seems especially apt, because the President, not the lawyer, was elected to represent the views and needs of the people.

So let us imagine that government lawyers are asked to construe an unjust law, that is, a law viewed by the President as unjust. Just to make this hypothetical a bit more real, let's suppose it's a statute that forbids any "transactions" between government agencies and undocumented aliens. Let's suppose also that the statute could most easily be read to bar, as "transactions," even the provision of emergency medical services to an undocumented alien, but that this reading is not absolutely compelled by the available interpretive materials (such as the text or the statements of the enacting legislators). And suppose that the President (or the Governor of Alabama, since this law is not entirely unlike that state's harsh new law regulating undocumented aliens) believes the law is unjust. So the President asks, in effect, "How can we minimize the application of this law by the use of the tools of legal argument and interpretation?"

It seems to me that in this case narrow interpretation serves justice. As I've mentioned, Waldron distinguishes between the pursuit of justice and the rule of law, on the ground that lawyers "pursue justice and the social good through the Rule of Law, not around it or in spite of it." I am not as comfortable as he seems to be with the idea that the rule of law in and of itself is not partly a matter of justice. Could a society with clear and consistently applied, but deeply unjust, laws be said to enjoy the rule of law? There probably has never been such a place -- deep injustice is likely always accompanied by arbitrariness -- but in principle I'd say that that hypothetical nation (a nation that apartheid South Africa, for instance, aspired to be) was not a country governed by the Rule of Law. What anti-apartheid lawyers used to say was that such a country had rule by law instead.

But whether the pursuit of justice is integral to honoring the rule of law, or whether it is a separate value that lawyers also serve, in the end is not critically important. Either way, in the case I've described, the path to justice (or at least a path to justice) is to seek a reading of the statute that minimizes its reach, by employing the available sources of interpretive guidance to generate a narrow interpretation of its terms -- even though that interpretation isn't the one those materials most easily support. That means that in situations where governments are constrained by unjust laws, they may indeed rightly react by turning to manipulative lawyering as a response. Waldron's concerns about government's duty to the system of law itself may weigh against this course of action and sometimes, maybe even often, may weigh so heavily that this approach, even if it is a path to justice, would be the wrong path to follow. But I don't think this path could always be ruled out.

How can a government come to be "constrained" by unjust laws? Isn't the government itself the lawmaker? Yes, abstractly; but not always, concretely. Congress can pass a law over the President's veto; the President then is obliged to implement it (at least unless it is unconstitutional), but if the President believes the law is unjust, what I've argued is that it could be right for the President and the President's lawyers to use legal interpretation to minimize that injustice. Similarly, a nation may be subject to international law rules whose meaning at first blush would be unjust to that nation and its citizens; and in such situations the nation and its lawyers might be right to use legal maneuvering to avoid this reading of the law.

I want to emphasize that I do not think either the national or international law prohibitions on torture and mistreatment of prisoners are unjust. But suppose the President felt otherwise. A President taking that view could legitimately say that his or her request for aggressive lawyerly interpretation of the torture prohibitions was not a denial of the rule of law, but an effort to seek justice within the constraints of the law.

There is also a more prosaic reason to defend aggressive government lawyering, namely that the legal system makes meaning from argument. Suppose a statute can be read either broadly or narrowly; the underlying policies said to be embodied in the statute favor a broad reading, but the terminology used in the law seems to point to a narrower reading -- one that would constrain government freedom of action less. If government lawyers should never look for "pockets of unregulated discretion," as Waldron maintains, then it might follow that they should not argue for this narrower reading. But the legislature that enacted the law, and the citizens who read it (with the benefit of training in statutory interpretation), might believe that the narrower reading is the right one. If the interpretive arguments favaoring that view aren't pressed, and as a result are ignored by judges or other decisionmakers, then the rule of law may have been injured -- because the methods of the law's interpretation are themselves part of the body of law whose stable and predictable application the rule of law protects. I don't mean to suggest that the government's lawyers must make any and all arguments just because the arguments can be devised, and in fact there are many reasons why that shouldn't be the government's duty (the arguments may actually disserve other goals the government has; other parties may be available to press the points on their own; or other parties may not be available to refute what the government says, in which case only the points the government embraces will get serious consideration by decisionmakers). But I do want to maintain that rule of law values may favor arguing against the extension of legal controls on the government, even though other rule of law concerns may (as Waldron says) favor the extension of such controls.

All of this leads me to say that we cannot take the rule of law, by itself, as a sufficient reason to bar government lawyers from making arguments that seek to expand the government's freedom from legal restrictions. That, however, doesn't mean that limiting the reach of the torture statute was legitimate. It does suggest that the President as client could believe it was legitimate to ask for such an interpretation, and it underlines the importance of examining how lawyers should answer such a request. 

Saturday, November 19, 2011

Is it legitimate for a President to ask exactly what conduct the torture statute forbids?

In a piece I've been working on for some time, on how to correctly interpret the United States' "torture statute," I've argued that it is legitimate for a President to ask his or her lawyers to explain precisely what conduct the statute does and does not cover. But one might well respond that really the right approach to this statute is to avoid coming anywhere near it. Or, less sweepingly but to the same effect, one might argue, with Jeremy Waldron, that society has provided as much precision as it should when it communicates that it prohibits "the deliberate infliction of severe pain"; he urges that no one "has a legitimate reason for demanding that the prohibition be . . . 'drawn closer' than that." Jeremy Waldron, Torture, Suicide, and Determinatio, 55 American Journal of Jurisprudence 1, 24 (2010).

Does that mean that it is really not legitimate for the President to ask the lawyers for a precise reading of the statute's terms? Not necessarily. Waldron's point, as he phrases it, is that the President could not rightly demand more precise meaning. To demand more precise meaning, however, may be to insist upon a binding determination in advance: so much is legal, so much is not. There are many circumstances in which the exact application of the law to actual conduct is not certain in advance, or even after the fact; those many areas of uncertainty are much of what lawsuits are made of. But we do not tell people, usually, that in those areas of uncertainty they must just do the best they can on their own. Instead, normally, we say that they can ask their lawyer, if they're fortunate enough to have one, for an expert opinion on what the law really does mean.

Why? Because in a society governed by the rule of law, the laws must be knowable. Secret law, at least as a general matter, can't be permitted. Since the written law is always at least somewhat in need of interpretation, it must be permissible for anyone, including the President, to ask a lawyer to interpret it -- otherwise its true meaning would remain hidden. Such questions are legal, and legitimate.

Is it ever illegal to ask what the law is? Surprisingly, the answer to this question is probably yes. A client might very well want to know what the law is in order to carry out some illegal scheme -- a classic example would be the client who inquires, "What countries don't extradite people charged with murder?" The client who asks about the law as part of a criminal enterprise may well be acting illegally even in asking the question, and evidence of that question might someday be offered as part of the proof of the client's guilt. On the other hand, a client who asks what the law is, so that he or she can come as close to violating it as possible -- but not violate it -- is acting legally, even if such a client deserves to be called a "bad man [or woman]," as Oliver Wendell Holmes, Jr., famously did.

So it might be argued, to make all this concrete, that when President Bush asked his lawyers to interpret the torture statute, he did so as part of an illegal scheme to covertly violate that very statute. Therefore the question itself was illegal.

That might be argued, but it's not at all clear that the argument would be correct. It seems, in fact, that while President Bush was eager to circumvent various legal restrictions, he did not want -- or his advisers on his behalf did not want -- to do so by directly violating the law. Jack Goldsmith, in his book The Terror Presidency: Law and Judgment Inside the Bush Administration (2009), reports that when he told Alberto Gonzales and David Addington, top Administration lawyers, that "[t]he President can also ignore the law, and act extralegally," they "looked at me as if I were crazy." (At 80.)

If, then, Bush wanted to take the "bad man" view of the torture statute -- to come as close to violating it as possible, but not violate it -- then his question was legal, even if his approach was repellent.

If, on the other hand, Bush wanted to arrange an escape from liability akin to flight to a country from which extradition would be impossible, that context would make his question part of an illegal scheme. Suppose, for instance, that he consciously engineered knowingly false advice from counsel, advice that could be transmitted through the executive branch, and then secured passage of legislation making reliance on advice of counsel a defense against criminal liability -- that might be the equivalent of planning one's flight from prosecution. But if, on the other hand, President Bush sought and obtained good faith advice, and then obtained legislative support for a defense of good faith reliance on this advice, all that would likely be entirely legal. 

There is also a third possibility. Waldron describes it in his book, Torture, Terror and Trade-offs: Philosophy for the White House (2010). There he says that "[w]e know, for a fact, that administration lawyers strove mightily in 2002 and 2003 to undermine the clarity of the legal framework relating to torture. . . . The aim was to create an atmosphere in which honorable people, inside and outside the armed forces, would come to think of the rule against torture as a muddled and difficult technical issue rather than a clear and uncompromising prohibition." (At 266.) The point, to quote Goldsmith again, was that "[t]he President had to do what he had to do to protect the country. And the lawyers had to find some way to make what he did legal." (Goldsmith, at 81.)

Let us assume that these descriptions are accurate, and furthermore that what the lawyers did was what the President asked them to do (though exactly what the President himself asked may be quite uncertain). In that case, his question was not "what precisely does the torture statute prohibit?" but rather something like "Please devise a plausible argument that the torture statute does not prohibit very much."

It seems to me that even this question is not forbidden by Waldron's initial injunction that no one has the right to demand specificity concerning the statute. The President, on this account, was not demanding that the law be acknowledged to be X. Rather, he was asking his lawyers to argue that the law is X. Argument that the law is X, or Y, however, is an absolutely standard part of the process of determining what the law actually is. Lawyers routinely say things to the effect that "under the law, rightly interpreted, my client has acted lawfully." Then they support that claim with elaborate interpretive arguments. In doing so, the lawyers are bound by good faith, but they are not actually required to believe their own contentions. If the net result is to persuade others -- "honorable people" -- of the correctness of the view they've asserted, all that is just part of our society's process of lawmaking.

That would not be so, however, if the President's question was something like "Please devise some argument, no matter how preposterous and unreasonable, that the torture statute does not prohibit very much." If that was the President's question, then he might well have been asking the lawyers to violate their duty of good faith -- and then we would be approaching the "illegal scheme" zone again.

I asked near the beginning of this post whether it was "legitimate" for a President to ask for a precise interpretation of the torture statute. What I've answered is that in general -- not always, but in general -- it is perfectly legal and legitimate for clients to ask their lawyers for as much precision as can be discerned, and even to ask their lawyers for advocacy of particular interpretations on their behalf. This is important, because if the President can legitimately ask this question, then we need to consider how it should legitimately be answered (and this is what I've been trying to do in the essay I mentioned).

                                                                   * * *

I have left one possibility unexplored till now, and want to briefly consider it: namely, that the President's questions might be legal, but still illegitimate. Broadly we can imagine two different kinds of illegitimacy, which we might call "procedural" and "substantive."

What would procedural illegitimacy be? Here's one possible answer: perhaps the President does not have the same prerogative to ask lawyers to concoct arguments on his or her behalf as ordinary clients do. Much of the work of interpreting the torture statute and other laws that constrained the Bush Administration's response to 9/11 was done by the Justice Department's Office of Legal Counsel, and it is quite possible that that office has acquired special duties of dispassionate analysis that were violated by the legal work done in the Bush era. Especially because the Office of Legal Counsel's opinions evidently are often treated within the Executive Branch as authoritative rather than just more or less persuasive, it is also quite possible to argue that if the President deliberately sought opinions that required the lawyers giving them to violate those duties of dispassion, then his requests were illegitimate. They would have been all the more illegitimate if the President then relied on the reputation of the office as a basis for "selling" its opinions to soldiers and investigators and interrogators; and they would also have been all the more illegitimate if those lower-level officials who wanted to escape the prohibition on torture understood and embraced the President's maneuver. But it should be acknowledged that exactly how dispassionate the office must be is a contested matter. Perhaps the point is most contestable in the field of war and foreign policy, where it is possible to argue that the President's interpretations of our legal duties are constitutionally entitled to some measure of deference; arguably, the President is entitled to endorse interpretations that legal reasoning alone would not support.

And what about substantive illegitimacy? Waldron argues in his book that the prohibition on torture is a key, fundamental part of our legal order. It would follow that deliberately seeking to undercut its force would damage not just the strength of this prohibition but other integral components of the rule of law. This is damage not to how the law is arrived at (procedure), but what the law is (substance). Waldron's argument is important, though I hope to return to the issue it raises, of just when a challenge to some part of our present law should be deemed illegitimate rather than seen as part of the ongoing process of argument through which our law lives.

For now, I'll just say that if the President's questions are legal, then even if they are illegitimate they may deserve an answer -- but the lawyers giving the answer may be able to do so in ways that resist the illegitimacy.

Tuesday, November 15, 2011

How wolves bred people

In his article "From the Cave to the Kennel," Wall Street Journal, Oct. 29, 2011, Mark Derr reviews new evidence and inference about the process by which wolves became dogs. The old view, as he describes it, was that some wolves entered human settlements as scavengers, and we set about transforming them into dogs. The new view is that wolves and humans chose each other, and that early domesticated dogs were much closer to wolves than we might have thought. "The emerging story," he writes, "sees humans and proto-dogs evolving together: We chose them, to be sure, but they chose us too, and our shared characteristics may well account for our seemingly unshakable mutual intimacy."

Derr points out that humans assisted by dogs would have had "a competitive advantage over those without," as their dogs would have served both as camp guards and pack animals (early dogs were big). Then he comments, but without elaboration, that "[t]he relationship between dogs and humans has been so mutually beneficial and enduring that some scholars have suggested that we--dog and human--influenced each other's evolution."

How would that have come about? Well, of course we don't know. But it's easy to see what might have happened. Those humans who had dogs to help them were more secure and more mobile, and hence more likely to survive.  Their children were more likely to survive too. And we're more likely to be the descendants of the humans who were good at associating with wolves and dogs than of other humans.

What does it take to be good at associating with wolves? Communication skills are probably important; those humans who were best at conveying instructions to other creatures who lacked language would have been best able to take advantage of the aid wolves could offer. Empathy would also have been useful, in part to make communication more effective, but perhaps also to make interaction more enjoyable. The wolves that chose us would have preferred to stay with the people they liked.

The upshot is that the interaction between humans and wolves tens of thousands of years ago favored people who were empathetic and communicative. Not overwhelmingly empathetic, to be sure; humans and wolves no doubt hunted together from a very early time, and jointly treated various other animals as prey pure and simple. But the people who made friends with wolves could well have been somewhat warmer and more social than others. And once those traits were favored as a result of the survival value of having wolves or dogs as companions, then their impact needn't have been limited to our dealings with wolves. We are the descendants not of those with an empathy-with-wolves trait, perhaps, but rather of those with an empathy trait -- now available to help shape our relations with many other animals, not to mention with each other.

So if people and wolves evolved together -- or, put differently, if wolves bred people even as people much more emphatically bred wolves -- what wolves bred us for may have been traits that are an important part of what we think of today as most distinctly humane.

Monday, November 14, 2011

On trading off security and liberty

In "Security and Liberty: Critiques of the Tradeoff Thesis," Professor Adrian Vermeule argues that it is undeniable -- yet widely and mistakenly denied -- that the "tradeoff thesis" is correct. This thesis, as his abstract puts it,  is that "there exists a security-liberty frontier, such that policies below the frontier can be changed so as to improve both security and liberty, while if policy is already at some point on the frontier, neither security nor liberty can be increased without decreasing the other (the tradeoff curve)."

I wouldn't deny that we need to weigh security and liberty concerns, or that they do sometimes clash, or that in principle we might decide to sacrifice one or the other when we encounter such a clash -- and that in this sense we do indeed sometimes need to trade off between security and liberty. One can accept all that without saying whether, in such a situation, we should lean in favor of security or instead in favor of liberty, and I take Vermeule's point in this paper to be that we should start by recognizing the reality of tradeoffs so that we can get on to arguing about which way to make the trades.

But the way we picture problems has an impact on how we reason about them, and Vermeule (elaborating, he explains, on an illustration he and Professor Eric Posner offered in their book Terror in the Balance: Security, Liberty and the Courts (2007)) offers (at 2) a picture that consists of a graph. On one axis is security, on the other liberty. A smooth curve connects the maximum level of security, accompanied by zero liberty, to the maximum level of liberty, accompanied by zero security. On this curve, the security-liberty frontier, it is impossible to increase liberty without decreasing security, and vice versa.

Now Vermeule is careful to say that "[t]he level and shape of the frontier are not fixed; they change over time, as exogenous threats wax and wane. Moreover, the level and shape of the frontier may change because society shifts resources towards or away from security policy, thus expanding or contracting the set of feasible measures." (3) It seems perfectly consistent with Vermeule's thinking, therefore, to infer that the actual "security-liberty frontier" is far from a smooth curve. Different threats, different measures, different circumstances of all sorts, could mean that this curve is far from smooth. It might be, for instance, that on this frontier, at some hypothetical point X (say, the point at which warrantless surveillance of US citizens is instituted), a very modest resulting increase in security could be accompanied by a drastic loss of liberty. This doesn't mean that the security-liberty frontier idea is false, but it does mean that the implication -- from the graph presented to illustrate it -- that tradeoffs are gradual may be quite mistaken, and that in turn may be a reason to treat these tradeoffs as less a matter for pragmatic calculation than for principled, determined challenge.

Moreover, it's not actually clear that there will always be a frontier. A society is a moving target, and intervention A will surely have not only planned effect B but also unplanned effects C and D. The increase in surveillance may entail an increase in resources devoted to surveillance, resources that shift the range of possible policies and so move the security-liberty frontier's location. More broadly, the correct analogy may be to Heisenberg uncertainty: the very act of altering a society's mix of security and liberty policies may itself shift that society's security-liberty frontier. 

Even if there is a frontier, it may sometimes, perhaps often, be impossible to mark. A given security measure, it is said, will have such-and-such an impact on security, at such-and-such a price for liberty. But none of these calculations can be certain. (Vermeule recognizes many of the difficulties of calculation in his essay.) Nor is it likely to be easy to determine that we are in fact on -- or not on -- the security-liberty frontier, which is in principle the only circumstance in which it makes sense to consider trading off liberty for security (since until we reach the frontier, by assumption we could increase security without any tradeoff against liberty). So to ask whether a given tradeoff moves us in the right or wrong direction on the security-liberty frontier may be to ask a question that is simply unanswerable. An unanswerable question may not be the right one to ask.

It seems to me, in short, that the "tradeoff thesis" and the "security-liberty frontier" are not one idea but two. There may well be circumstances in which security and liberty do conflict and choices may indeed have to be made between them, but those choices will be much less certain and much less straightforward than the smooth contours of the tradeoff curve seem to suggest. A proper sense of our own limited capacity for calculation is, I think, a reason to lean in favor of maintaining the liberties we have achieved over so many years of effort.