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.