Metering the right to water in South Africa

The decision by South Africa's Constitutional Court in Mazibuko and Others v. City of Johannesburg and Others, handed down in October 2009, highlights the perplexing issues entailed in recognizing a constitutional right to water. Here's a preliminary question that's not so perplexing: if people have a right to water, is it a right to unlimited water? The answer must be no, since there's no such thing as unlimited water, least of all in a "largely arid country" (as the Constitutional Court characterizes South Africa, paragraph 3). But here's an observation that makes this first proposition less helpful than it might have seemed: for someone who has plenty of water to make judgments about how much water other far less fortunate people are constitutionally entitled to is deeply discomfiting. One must always empathize with people who are so profoundly in need -- and yet South Africa cannot provide all that its people need.

But if no one has a right to unlimited water, then can water be automatically cut off after a certain amount has been provided? This was one of the issues in Mazibuko. It's worth emphasizing that this question in a sense only could arise because something quite impressive already existed in the city of Johannesburg, namely a system that did provide some amount of water to each person, and without charge, as a matter of constitutional right.

So the question really was, what happens when this guaranteed, free water runs out? Even if we agree that the water can't just keep flowing forever, no matter what, a seemingly technical legal question may have great practical significance: if the water shuts off, does the shut-off count as a deprivation of a right or not?

If you have a right to water, subject to cut-off when that step is properly justified, then arguably you have a right to a hearing each time you run over your allotment -- say, around day 25 of each month, if your allotment is distributed on a monthly basis. If, on the other hand, your only right is to the basic allotment, then when the meter runs out the water simply stops, without any further ado.

The word "meter" isn't metaphorical. The system the Constitutional Court considered, and unanimously upheld, included pre-paid meters which did indeed turn off the water (unless additional water credits were purchased) when the monthly allocation ran out.

Constitutional abstractions aside, the problem is a stark one: protecting each person's access to more water if they rightfully should receive it is likely to be costly (in terms of hearings held, and water supply continued) and likely also to encourage some people who rightfully shouldn't get extra water to game the system -- all to the detriment of the overall societal effort to supply water and other socioeconomic rights to all. But cutting off water will harm some truly needy people -- even, as the South African legal scholar Michael Kidd has noted, leading to outbreak of disease as cut-off users turn to alternate, unsafe sources of water.

It seems to me that the Constitutional Court essentially concluded that this dilemma had no perfect solution, and that it would therefore defer to the Johannesburg water authorities, who were at least making sincere and diligent efforts to fulfill their task of providing water to all. There is good reason for such deference. Courts can't run water systems, and if the design and operation of water systems inevitably involves choices among various imperfect alternatives, those are the sorts of choices we generally think elected decisionmakers should make.

But it is very troubling to think of families turning in desperation to tainted water. The Johannesburg system allocated water by the "stand" (a unit of property), and actual stands have widely varying numbers of people living on them. No doubt the poorest stands tend to be the most crowded, and for the people on these stands the water allotment per person is at its least. Specifically, Johannesburg allocated 6 kilolitres of free water to each stand, an amount that supplied each resident of a stand with an average household size (3.2 people) with approximately 60 litres of water per day. That amount, the Constitutional Court noted, was well above what even the challengers of the policy said was constitutionally required. (Paragraph 88) But for a household in Phiri (an area of Soweto), where an average of 8.8 people lived on each stand, this policy would deliver only about 23 litres per day per person, a worryingly low amount.

These poor households were not entirely without recourse, since a program allocated 4 extra kilolitres per household if they registered as indigent. I agree with the Constitutional Court that requiring registration as indigent is not unacceptably stigmatizing (paragraph 101), but in fact the program apparently didn't work very well, since only a little over 1/5 of the eligible households registered. (Paragraph 81)

Perhaps some better distribution system should have been required, to insure, or at least make it more likely, that no one faced acute health risks as a result of a water cut-off. Increased allocations for specially crowded stands might have been feasible, though the Court thought otherwise (paragraph 84). Or some system of emergency aid might have been put in place. But a perfect guarantee seems very hard to achieve, unless the water never stops flowing -- and so all policies that do cut off water are balancing individual against community need.

It's also conceivable, however, that in Johannesburg there were enough safe alternative sources of water so that the cut-off system did not pose the same acute health risks as it could have elsewhere. And it must be said that while the poorest of the poor were at risk of shut-off, they were not being deprived of, or denied, all water -- they received the basic, free allocation. In that respect, this case is weaker than Government of the Republic of South Africa and Others v. Grootboom and Others, the pathbreaking 2000 decision in which the Constitutional Court decided that a plan to implement the constitutional right to housing had to make some provision for the needs of the neediest, those homeless here and now.

To all this, one further complication must be added. In the last years of apartheid, a culture of nonpayment had grown up in Soweto and other predominantly black areas of Johannesburg and South Africa. Nonpayment was a form of resistance to apartheid, but it did not end with the achievement of democratic government. So a further problem for the Johannesburg water authorities was that people were accustomed to getting water without paying for it.

How to overcome a culture of nonpayment? That's another difficult question. One wrong answer would be by brute force and confrontation. The people are not to be bludgeoned. Yet who would not prefer free water to water available only for a fee? Men and women are not angels, and so high principles alone will not likely alter a practice so seemingly in one's self-interest (only seemingly, since in the long run water costs society money, and will not arrive without it).

So the pre-paid meter system becomes very attractive. It switches the burden of inertia: now, without payment, the water will automatically run out. And it individualizes the situation: just your water runs out, since you didn't buy water credits. In a society with a culture of payment such a system would be unnecessary, but perhaps in South Africa it was called for. That wouldn't remove the need for measures to protect those who ran out of water and could not afford to pay for it, but it might justify using the pre-paid meter system in the first place.

Finally, what should one make of the evidence cited by the Court to the effect that after people got used to the new system, they were generally rather happy with it? (Paragraph 18) The installation of the meters went in tandem with upgrading the Soweto water supply infrastructure, and it's plausible to think the two really were dependent on each other -- no dependable revenues, no way to finance a new infrastructure. And perhaps that is what most of the people of Phiri concluded.

If that's so, does it matter constitutionally? In some contexts, we would say no. Even if many people want my right to free speech abridged, I'm still entitled to exercise it. (Though not always and everywhere -- not with a loudspeaker in a quiet neighborhood late at night, for instance.) But socioeconomic rights seem more intrinsically concerned with costs: if I am entitled only to those rights that the state is progressively achieving by reasonable measures within the limits of its available resources (the characteristic dimensions of the socioeconomic rights in South Africa's constitution), then reasonable choices about who gets what seem intrinsic to what the constitution secures. Unless there is some minimum amount that everyone must have -- and that the state can in fact provide -- there will inevitably have to be balancing of the socioeconomic claims of some against others.

And if that balance is to be made, it seems to me that the judgments of the people themselves about whether that balance has been struck rightly are relevant. The residents of Phiri who were satisfied did not have the right to deprive their unhappy neighbors of constitutional protection -- but their views were, I think, relevant to deciding whether that protection, the guarantee of reasonable measures to provide water, had been provided.

So, with the privilege of as much water as I want, I hesitantly suggest that the system of pre-paid meters in Phiri, Johannesburg was constitutional in and of itself, though the constitution might have required more than Johannesburg had done to ensure that the neediest of its families had enough water to meet their basic human needs. I welcome comments by those closer to the facts about whether they agree.

Statutory interpretation in Holder v. Humanitarian Law Project

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

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

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

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

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

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

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

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

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

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

The Supreme Court's decision in Humanitarian Law Project

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

There's a lot to be said about this decision, but I want to focus here on one observation by the majority. Rejecting the plaintiffs' arguments that the First Amendment should protect their efforts to train a terrorist organization in the use of international dispute resolution processes, the Court says that such training might actually "benefit that organization in a way that facilitates its terrorist activities." (Majority, at 33.) This must be a possibility, just as it is possible for any resource or skill to be used for good purposes or bad. As Justice Breyer says in dissent, the logic of this argument is extremely far-reaching, for if this danger is a reason for suppressing "speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations," it is also a reason for suppressing other speech, including absolutely pure political advocacy. (Dissent, at 13-14.) The majority makes clear it is not asserting that Congress could do so, but the logic of its argument would provide a reason for upholding such laws if Congress chose to pass them.

All that is by way of background to the point I want to focus on. This point, as put by the majority, is that "[i]f only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II." (Majority, at 33-34.) As I've thought about the issues of this case over the years, I've worried about roughly this issue -- that the logic of the free speech critique of the "material support" law seemed to carry all the way to supporting, say, the (hypothetical) hospitals of Al Qaeda.

It appears that none of the justices believes free speech extends that far. All seem to accept that fungible resources, even if given for good ends, enable bad recipients to use other equivalent resources for their own malign purposes. Justice Breyer argues, however, that "[t]here is no obvious way in which undertaking advocacy for political change through peaceful means or teaching the PKK and LTTE [designated "terrorist organizations," one Kurdish and one Tamil], say, how to petition the United Nations for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible." (Dissent, at 8.)

But would US citizens have had a free speech right to teach the Japanese government methods of peaceful international dispute resolution during World War II? Doing so wouldn't really have involved the transfer of fungible resources, as Justice Breyer points out. Yet it's hard to believe that such speech would have been constiuttionally protected. If it wouldn't have been, then why would the First Amendment entitle US citizens to do the same thing for designated terrorist organizations?

I don't think that Justice Breyer offers an explicit answer to this question. But there is a possible, and at first glance straightforward, response to it: we had declared war against Japan, and in wartime free speech rights are subject to special limits. In contrast, we have not declared war against the organizations whom the Secretary of State has designated as "foreign terrorist organizations," to which the ban on material support applies. (The majority notes, at 3, that the Secretary designated 30 such organizations in 1997.)

I don't believe that the constitution requires a declaration of war as a basis for our going to war. Despite the absence of a declaration of war, therefore, I would say that our conflict with Al Qaeda is a war validly authorized by the Authorization for Use of Military Force (the AUMF), a statute passed by Congress and signed into law by President Bush in September 2001. Some might disagree with these judgments (and I'll return to one reason for disagreeing below). But even if we are at war with Al Qaeda, I do not think we have gone to war with all the various organizations designated by the Secretary of State as foreign terrorist organizations, including the Kurdish and Tamil organizations involved in this case. It's open to doubt whether Congress even could authorize the selection of targets of war by the Secretary of State, but in any event I don't think that as a matter of actual fact our statutory response to these organizations can plausibly be seen as having amounted to a national decision for war.

If the President can take us to war with anyone he or she chooses -- if President Bush had the authority to launch an actual "war on terrorism" rather than just a statutorily-authorized war against Al Qaeda -- then the question of what choices the President or his subordinates made becomes a more difficult one. But I do not agree that the President's war powers extend that far, and so I do not understand us to be engaged in a global war on terror, or even against all "designated terrorist organizations."

Assuming that the fact of a validly authorized war provides a straightforward reason for saying that US citizens had no right to teach the Japanese government -- or Al Qaeda -- techniques of peaceful conflict resolution, why didn't Justice Breyer make this point? Perhaps because it amounts to a potentially broad concession: that indeed first amendment rights can be narrowed during war, such as the war we are now in.

I would make that concession. The alternative, I think, is to make the majority's question about Japan unanswerable, or to make it answerable only as the majority would answer it -- that is, to accept that if limits on speech to the Japanese government in World War II would have been constitutional (and surely they would have been), then similar limits must always be constitutional. I think it is much better to accept that war can impose special limits, and to insist that when those special wartime rules are inapplicable, then the first amendment protects a wider range of speech.

The main problem with the approach I'm urging is that we are, right now, at war. So, it might be argued, even if the material support statute wouldn't bar training designated terrorist organizations in peaceful conflict resolution in wartime, it does bar such training right now, precisely because we are at war. But we aren't at war with these organizations (unless they are encompassed in the targets identified in the AUMF of 2001 -- essentially, all those responsible for, or harboring those responsible for, the 9/11 attacks).

It is possible to argue that we are not "at war" with Al Qaeda either, and that we should, or even legally must, consider our conflict with Al Qaeda, despite its statutory authorization in the AUMF, as something other than war. Unlike some observers, I do accept the "war paradigm" as a description of our clash with Al Qaeda, despite the fact that Al Qaeda is not a state. It seems to me that what has made our encounter with Al Qaeda so morally and legally troubling is not that we conceived of it as a war, but that we asserted that in this war we could do almost anything. That was a terrible mistake. In the same way, I think it would be a terrible mistake to go from the premise that we are at war with Al Qaeda to the conclusion that we can do almost anything to any designated foreign terrorist organization, or to the conclusion that we can restrict the speech of US citizens vis-a-vis such organizations as if we were at war with these organizations.

In short, I would accept that war can restrict speech, but insist that war is nothing like a blank check for such restrictions. None of this, however, quite answers the question of whether the Supreme Court was ultimately right to accept the particular restrictions at issue here. But if, as I've argued, we are talking about peacetime limits rather than wartime powers (because the organizations receiving "support" were not among those with which we are at war), then I'm inclined to agree with the dissenters that the risks of harm to the US from the particular kinds of speech at issue in this case are outweighed by the constitutional priority for speech.

Yet perhaps the most striking aspect of the case is that the vote in favor of the statute's application to such speech is 6-3. Justices Stevens and Kennedy, two of the most powerful voices for the rule of law over the past decade of war, concurred with their more conservative colleagues that this speech was beyond the constitution's protections. In a future post, I'll look further at the reasons why the majority justices viewed the potential harms of this speech as so substantial that the First Amendment did not protect it.

Lawyers against torture -- inside the Bush Administration

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

Alberto Mora, the idealistic General Counsel of the Navy who thought the Defense Department would realize that torture was wrong, is one example. (213-37) James Comey, the tough Deputy Attorney General who told the Senate during his confirmation hearing, "I don't care about politics. I don't care about expediency. I don't care about friendship. I care about doing the right thing." (310), is another. Dan Levin, the acting head of the Office of Legal Counsel who subjected himself to waterboarding in an effort to determine whether it really was torture or not (298-99), is a third. Matthew Waxman, a Deputy Assistant Secretary of Defense, and John Bellinger, "the highest ranking lawyer in the State Department" under Condoleezza Rice, are on this list too (316-24).

But heading the list is probably Jack Goldsmith, a conservative legal academic who became head of the Office of Legal Counsel, set about to research the law on torture and other subjects that John Yoo and others had addressed in secret memoranda, and ultimately withdrew what was called "the Golden Shield," perhaps the critical memo that had legitimized torture. (261-94) This decision, which Goldsmith reinforced by timing his resignation so that if the withdrawal was overridden his resignation would appear to be in protest (294), meant that what had been said to be legal was so no longer. This wasn't just a closing of the gate prospectively, but potentially an expulsion from the gate retroactively.

Despite the bad name lawyers get a lot of the time, they've shown this kind of courage in many oppressive countries. I realized this when I studied the work of anti-apartheid lawyers in South Africa in my book In a Time of Trouble: Law and Liberty in South Africa's State of Emergency (1992); their work was remarkable, but happily it was not unique. I found examples of lawyers' taking stands against government oppression in Argentina, Brazil, Chile, Spain, France, Russia, Ghana, Kenya, the West Bank, Syria, India, Malaysia, Bangladesh, and the United States, and the full list would surely be longer. It seemed to me as I studied South African lawyers that one source of their determination and courage lay in the traditions of the legal profession itself, and Mayer's book offers some signs that that was true for the lawyers resisting US torture too.

Thus Goldsmith, as Mayer portrays him, "convinced himself that it would be best to set aside his personal qualms [about how to treat detainees]. The moral trade-offs between torture and security were so difficult, he saw them as policy questions for the President. His job as a lawyer, he told himself, was simply to provide legal analysis. His political and moral opinions were irrelevant." (267) Many lawyers would say that their political and moral opinions did rightly play some part in interpreting what the law was, but Goldsmith evidently was not one of them. He believed there was a there there, in the law itself, and his job was to find it.

What's striking is that what some of these lawyers did was ... research. They apparently did not believe that the law was indeterminate; instead, they felt that by their own hard work (up to and including enduring waterboarding, in Dan Levin's case) they could determine what the law really meant. It's quite possible to imagine other lawyers, not convinced that laws had demonstrable intrinsic meanings, resisting the Bush Administration approach because they felt it was morally wrong, or even strategically unwise. But these lawyers apparently found strength in adhering to the law. If they hadn't believed that laws meant some things and not others, could they have believed that the law was worth standing up for?

That question isn't actually just rhetorical, and there is more than one possible answer to it. We can imagine people standing up for, say, the process values of the law -- declaring that the law doesn't have a determinate meaning but that the process by which it works out decisions in cases is valuable and worth upholding. A faith in fair process is a meaningful faith. And its significance is reflected in the events Mayer's book describes. It seems quite fair to say that those who opened the door to harsh treatment sought to read the torture statute and other laws as permissively as possible; and fair as well to say that lawyers such as Levin and Goldsmith sought to figure out what the torture statute really authorized. That difference of attitude is a process difference; Levin and Goldsmith were more impartial than Yoo and Addington. (Part of my argument against the memos authorizing torture, which I alluded to in my previous post, is precisely that they took the wrong interpretive approach -- though I've argued, in essence, that the right approach is an interpretation in favor of liberty, not simply a neutral effort to discern the meaning of the words.)

Important as process may be, in any event, my sense is that the lawyers who resisted the Bush Administration's approach to torture held more than a faith in process. They believed that the law actually meant something, though process might help them to determine what that was.

It might be fair to say that ultimately what they thought was that the law limited government power. That's perhaps the fundamental point about how to read the torture statute: if you don't read it as a limit on government power, you've misunderstood it altogether. If you don't read democratic constitutions as limits on power, you've again missed the point. John Yoo told Jane Mayer that Congress couldn't "'tie the president's hands in regard to torture as an interrogation technique.' He continued, 'It's the core of the commander in chief function. They can't prevent the president from ordering torture.'" (153) To consider the commander in chief power unlimited is to miss the central point about a constitution built around checks and balances; to extend that notion of unlimited power to torture was the same mistake, augmented exponentially.

"The Dark Side"

Three posts back, I wrote about lawyers as gatekeepers. Fresh from reading Jane Mayer's excellent book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals (2008), I see that the role of lawyers as gatekeepers is integral to this sad story. Responding to 9/11, our government decided that we would use any and all legal force to interrogate the alleged terrorists we captured.

What that meant was that whatever the lawyers said was legal would be done. It meant, quite precisely, that lawyers were the gatekeepers determining what forms of brutality we would use on our prisoners. Mayer makes precisely this point (in particular, at 231).

Not any lawyers, and not even many. Because of the special role of the Department of Justice's Office of Legal Counsel (OLC), the opinions issued by that single, elite and quite small, office to a large extent (not completely, as I'll discuss below) determined whether the gate opened or shut.

If these same lawyers had been criminal defense counsel, representing people charged with the crime of torture, there would be no basis to challenge their offering the most narrow interpretation of the torture statute conceivable. No lawyer is permitted to make an argument that isn't in good faith, but in the context of criminal defense the boundaries of good faith are very, very wide.

It's incongruous to think of lawyers who are determining the law for the executive branch of the United States government doing so in the mode of criminal defense lawyers, but it is not a simple matter to explain why an interpretation that is in good faith when offered by one lawyer isn't still in good faith when offered by another, such as a member of the Office of Legal Counsel. I've been trying to answer this point, in a work now in progress, by arguing that the law itself provides reasons to limit the range of interpretations, when the interpretations are secret, when human rights are at stake, and especially when legal rules as crucial and firmly established as the prohibition on torture are being interpreted.

To these reasons I'm inclined to add the gatekeeper role the lawyers at the OLC played, and to say that the more the lawyer is placed in this position the greater his or her responsibilities are. Here, the policy decision by the Bush Administration -- to do whatever the law permitted -- made the OLC's gatekeeper role even more salient than it would normally have been, because it was no longer open to the lawyers to say that choices they viewed as legal might still be rejected on policy grounds; the law's obstacles, if there were any, were the only ones left.

But all this tells the story too abstractly. It seems clear that the Administration wanted to do whatever the law permitted, and that it wanted the law read to permit as much as possible. That by itself isn't extraordinary; while there probably are clients who say, "Tell me what the law really requires, and I'll do it," no doubt there are many others who say, "Find me a way to do what I want to do, and still stay within the law." So having that kind of client, and knowing it, probably doesn't make the OLC lawyers' ethical situation special (as I think others have pointed out).

A second abstraction is the idea that the OLC lawyers were simply stuck with the gatekeeper role. This does not seem to be correct. There are a lot of lawyers in the government, and many of them write memos; on a hotly contested matter, it takes effort to make one's interpretation of the law controlling in fact, even if it is already controlling in theory. As it happens, many of the memos written by the OLC weren't disseminated widely at all; for example, Mayer reports, the opinion determining that the "Terrorist Surveillance Program" at the National Security Agency was legal, despite its seeming breach of the Foreign Intelligence Surveillance Act, was not made available to the lawyers for the NSA itself! (Mayer at 268.) Moreover, sharp bureaucratic maneuvers were made to generate legal decisions -- notably, in the Department of Defense, on the issue of interrogation tactics -- while keeping those who might object to harsh tactics out of the loop, even people with as obvious a say in the matter as the General Counsel of the Department of the Navy and perhaps the top Judge Advocate Generals of the armed services. (See Mayer at 213-237.) Evidently, John Addington (Vice President Cheney's counsel), John Yoo (not, as it happens, the most senior lawyer in the Office of Legal Counsel), and three other lawyers became a self-constituted "War Council" (Mayer at 66)and pressed a very hard line on how much power the President could exercise, and what means he could order employed.

So a more precise account of the role of the lawyers is that a small group of lawyers worked to insure that a particular answer to the question of what the law permitted became the authoritative answer. They sought to monopolize the gatekeeper role, with the goal of opening the gate as wide as possible.

None of this says that any of these lawyers sought to violate the law. Nor does it say that the Administration sought to violate the law -- though it's hard not to think that if you believed harsh treatment was necessary to save American lives, as the leaders of the Administration thought, you might also feel that violating laws that forbade such harsh treatment was also necessary, and justified. (Mayer reports, at 305, the shock that one participant in a meeting felt when he heard "Scooter" Libby, Cheney's chief of staff, say of the CIA's secret program of detention and interrogation of high-value terrorist suspects that "Ninety-nine percent of what we do is legal" -- a statement which might mean that Libby, and others, knew that one percent was not.) If you felt that, you might also feel that you needed fig leaf legal opinions, which you'd then keep locked up; meanwhile, you would assure those in the field that their actions were legal, based on these secret opinions. Doing that is just plain illegal, and for a lawyer to help the client do that would also be just plain illegal. But as I say I'm not assuming that anyone acted with the intention to violate the law.

I'm not even saying that the torture statute is altogether easy to interpret. Unfortunately, in some respects -- not all -- it just isn't; that's a subject of the work-in-progress I mentioned a little earlier in this post.

But what seems to have happened, even if everyone acted within their conception of the law, is that a small group of lawyers maneuvered to impose their very extreme view of the law, with full knowledge that the government would use every inch of the space at the gate they had opened. Very possibly the lawyers also agreed with that government policy, though I don't think that fundamentally changes the issues of legal ethics; it is surely no more wrong to open a gate which you feel should be entered than to open one that you believe should not be used. (Of course, your preferences may affect your interpretations, and so there is reason to be cautious about endorsing as correct a legal reading that also happens to be the one you want.)

But this extreme view of the law was also mistaken; at least some of what was authorized actually was torture, and a great deal of it was unbearably cruel and inhumane. So I say; and one might respond, but what proves that I am right? And the answer is that nothing absolutely proves it; it is necessary to judge what legal provisions mean. But the impossibility of absolute certainty doesn't mean judgment is impossible; quite the contrary, it means judgment is essential.

It seems to me that these lawyers misunderstood their responsibilities, in particular their gatekeeping responsibilities, and that those responsibilities were especially acute because the lawyers had maneuvered so intensely to secure them. I'm not contending that as a result these lawyers violated any rule of legal ethics or of the criminal law, or of the Nuremberg principles. What seems most important is simply to say that these errors were yet another of our country's profound overreactions to national security crises, and to repudiate them. It is very hard to avoid such overreactions, but important to try to learn after each failure, as fully as possible, what the failure was. The United States has conducted an experiment with torture, an experiment from which we ourselves will suffer for a long time to come. It is very important not to repeat it.

The paths of our lives -- marked in seventh grade?

Also in the Science Times for June 8, 2010, John Tierney discusses the possible differences between men's and women's ability in science. He argues that although men and women on average may have equal capabilities, the crucial issue for their contributions to science, and in particular for their representation on academic science faculties, may be that more men than women are exceptionally good at science. Tierney cites a forthcoming study finding this inequality in “gifted seventh graders,” and it will certainly be interesting to see what future studies show or suggest on this score.

Even if this asserted difference between men and women (or boys and girls) exists, and is actually the product of something innate, it wouldn’t automatically follow that it was the source of the underrepresentation of women among top scientists – unless such fine distinctions in ability do shape later achievement. But perhaps they do: Tierney says that in fact “[o]ther studies have shown that these differences in extreme test scores correlate with later achievements in science and academia.”

The particular studies he refers to are studies of cohorts of "intellectually precocious youths" who were identified in the 1970s and early 1980s and have been followed since. It does indeed appear that boys whose SAT – Math scores were in the top quarter of this highly talented group are, for example, between 3 and 11 times as likely to have subsequently earned tenure at a top-50 university as are their counterparts with SAT – Math scores in the bottom quarter of the group. (Interestingly, among women the effects are less clear.)

Tierney goes on to say that “of course, a high score on a test is hardly the only factor important for a successful career in science, and no one claims that the right-tail disparity [the disparity between boys and girls at the far-right, or highest-achieving, end of the math test spectrum] is the sole reason for the relatively low number of female professors in math-oriented sciences.” Certainly the present ratio of men to women on science faculties must also reflect past discrimination, both conscious and unconscious, the effects of which are locked in by tenure for a generation or more.

But when those effects are someday put to one side, how far will these fine differences among the very talented explain any gender disparities in outcome that persist? Tierney says that “Even when you consider only members of an elite group like the top percentile of the seventh graders on the SAT Math test, someone at the 99.9 level is more likely than someone at the 99.1 level to get a doctorate in science or to win tenure at a top university.”

But if this is true for precocious seventh graders, is it also true for the population in general? Perhaps – but it may also be the case that many of the talented adults we respect were not people who showed “precocious” talent in seventh grade. For these talented later bloomers, the relationship between any of their test scores and their later achievements may be quite different than it is for the identifiably precocious.

The studies Tierney cites appear to show that some people begin their progress on the path to adult achievement early and advance steadily along it. In one sense, that’s self-evident, but it is striking to realize that seventh-grade SAT scores can capture clear signs of this progress. But these studies don’t show what might be called the converse: that people who ultimately attained great achievements as adults predominantly began as high achievers in those very areas as children. Until that’s shown, the significance of early test scores, and of the difference between the highest and the high among those early test scores, won’t be fully known.

I hope that our progress through life will not be fully predictable – but it’s hard to deny that studies like this are making the course of our lives more predictable than once was the case. As individuals, most of us see the progress of only a few lives, and the folk wisdom we evolve from what we see is likely far from perfect. As systematic data are accumulated, however, the saving uncertainties in our knowledge may become fewer and fewer.

The web and the classics -- a bit of a jeremiad

If everybody has 15 minutes of fame, does that mean nobody gets 30? Well, no. But does it mean that there will no longer be "classics" or a "canon"? Of course, these ideas have come in for a lot of challenge over several decades, in part on the ground that they were merely lists of the works of dead white males. But in principle the idea of classics could accommodate that critique -- once we became a more inclusive culture, our lists of classics would evolve accordingly.

But in a world of 15 minutes of fame, these lists may take another kind of hit. They won't disappear, of course. In fact, they'll be (they no doubt already are) instantly available on the web. There'll be a lot of competing lists, but for a somewhat unsettling reason that competition probably won’t be distracting. The reason is the nature of knowledge networks -- in which, so I'm told, a small number of nodes become the focus of a great deal of connection, while many other items go almost or completely unattended (e.g., and most painfully for scholars, unread). That disparity of attention will enable search engines to smoothly take us to the most well- or widely-regarded.

So the lists will remain, and they'll be better -- at least, more inclusive -- than the older versions they replace. But will people care about the items on them in the way they once did?

Some people certainly will. The web lets every enthusiast pursue his or her passion. And really it's never been remotely the case that everyone shared a passion, or even an attraction, to the classics. So here's my question, better phrased: will the degree of attention our culture has paid to the classics decline?

I think the answer has to be yes. Human attention is finite. Multitaskers may be expanding the size of that finite quantity, but they aren't making it infinite. And the point of multitasking seems to be to carry out multiple activities simultaneously by giving each less attention. That’s a workable strategy up to some point, but the news reports (the "papers") are full of stories of people who quickly exceed their own true capacities, such as cellphone-using drivers and even pedestrians.

Another way to put this is to ask why all our screens are so attractive. The answer is partly that they're full of interesting stuff. (I'll come back to this in a moment.) But another answer is that we're the sort of beings who are easily distracted by whatever we find interesting. Being so responsive to changes in our environment must be useful to survival, though I also suspect that the brains we're equipped with are so powerful that they just need more stimulation than many of our actual environments provide. Either way, we – or at least many of us -- are easily distracted. So the more stuff there is to distract us, the more we'll be distracted. What else is the information age but a galaxy of potential distractions? And if we're distracted, then we're not paying as much attention to some short list of important matters -- like "the classics."

Perhaps it’s also important to think about what particular stuff interests us. Obviously we’ve known for a long time that we are mostly not that interested, that much of the time, in the purest abstractions of philosophy. Sex and violence are more up our alley. But the web provides a particularly supple way to learn more about what interests us. So, for example, we now not only know that many people like to watch appalling YouTube videos, but we also know that many people like to watch videos of other people watching the first set of videos – and many people make videos of themselves watching these appalling videos. Whether this behavior is an expression of empathy or of schadenfreude doesn’t much matter for now; my point is just that whatever actually grabs us, the web is remarkably well suited to deliver (virtually, to be sure), and that a whole lot of what actually grabs us is a long ways from the classics. I don’t mean to equate the classics with philosophical exploration either; the classics are classics because they too speak to what actually grabs us. But they generally speak to it in a more complicated and less accessible way, and in a way that inevitably becomes less accessible over time as the worlds of the creator and the audience diverge. Meanwhile, we now have very good and quick fixes available for a click.

So the classics won’t disappear, but I think it is fair to say they will fade. Perhaps that’s not ultimately a bad thing. The existence of “classics” was itself the result of a world in which information and the ability to access it were limited. We have not needed the Medicis to assure the production of art for several centuries (though with the digital challenge to copyright we may yet need patrons again). In the same way, we may not need classics as a keystone of learning. Perhaps we’ll learn to appreciate (and make) our culture in different and freer ways. (So Roger Ebert appears to feel about film critics – thanks to my friend Jon Art for this link.) At any rate, I think we’re all going to find out.

Doctors and lawyers as gatekeepers or agents

Today's New York Times science section has a very interesting article on how doctors should interview patients who they fear might be trying to trick them into prescribing addictive drugs. Under the title "Occupational Hazard: Playing the Fool,"Dr. Michael W. Kahn argues that "the harm of missing a chance to help often greatly exceeds the harm of prescribing under a false pretext," and suggests that "our prescribing habits" could benefit from the legal idea "that we should let the guilty go free rather than punish the innocent." But lawyers face similar problems, as I wrote in what became a chapter in Lawyers and Clients, the book I've mentioned earlier on this blog. It is right that a lawyer should not be a prosecutor to her own client, but also right that lawyers often need to learn truths from their clients that the clients may be reluctant to reveal, and that lawyers may be constrained in what they can do for their clients by what they learn -- as, I'm sure, Dr. Kahn would agree that doctors also must try to learn what their patients' true situation is, and must, in his words, "exercis[e] proper skepticism and clinical shrewdness."


I agree with Dr. Kahn's approach, and I'm particularly impressed by it because in urging doctors to give their patients the benefit of the doubt, he is urging doctors to risk enabling the client, quite directly, to violate a number of laws (and even to risk the repercussions of coming under suspicion as aiders and abettors). In many circumstances, lawyers who err in favor of trust don't run quite such acute risks.


But what strikes me about both professions, in light of Dr. Kahn's article, is how awkward the idea of agency is -- "agency" as it's meant in the statements that lawyers, or doctors, are the agents of their clients. It's often been pointed out that lawyers are also gatekeepers -- as clearly is true of doctors as well -- but I had thought of that function as something of an add-on, or a sidelight, of the role. It seems to me now, however, that the gatekeeper function is absolutely integral to what members of these professions do. Law and medicine are storeboxes of tools, very powerful and dangerous tools. Someone must give lay people access to those storeboxes, but the right kind of access -- access structured so that the clients/patients don't harm themselves and don't harm others.


If we think of lawyers as the agents of their clients, it is easy to conclude that they should structure their relationships with the clients so as to put their expertise at their client's service. This is one formulation of the idea of client-centeredness, an idea which I hold to. But it is an idea whose grip is somewhat weakened when we think of lawyers as gatekeepers as well, for a gatekeeper is not completely at the service of those clamoring at the gate. The idea of lawyers as partners with their clients -- a formulation sometimes taken to suggest greater lawyer authority than client-centeredness connotes -- also fits uncomfortably with the gatekeeper role; again, the gatekeeper and those waiting at the gate are not partners.


Of course, one might respond by trying to diminish the ways that lawyers perform as gatekeepers, and there's a lot of value to this approach to lawyers' responsibilities (just as Dr. Kahn is trying to diminish doctors' performance of this kind of role). But it's very hard to eliminate this part of the professional function altogether. In fact, all agents have their zones of responsibility that the principal cannot override, and so in an important sense no one is meant to be entirely anyone else's agent.