Who's really an enemy combatant, and how do we know?

This is the first of what may be several comments I'll be posting on this topic. What's struck me is this: of the Guantanamo detainees whose habeas corpus cases have been completed, quite a few have been successful in demonstrating to the courts' satisfaction that the government has not shown a basis for holding them. This record certainly raises the possibility that we have been holding men without justification for many years. For now I just want to raise one other possibility: that the standards of evidence being applied in these habeas cases, though they are by no means as rigorous as those that would be applied in an actual criminal prosecution, are still just too demanding for this situation. If, in Afghanistan, our forces capture suspects based on information, often second-hand information, communicated by people of dubious reliability, they certainly aren't operating by the standards we demand for police work here at home. But this isn't police work, and it's not home -- and so it may be that the lesson of the habeas cases so far is that this particular effort to infuse judicial standards into the operation of a war is just not tenable. Or, again, it may be that we have been holding people for no good reason for a very long time.

Airplane security and the Christmas bombing attempt

Just back from a plane trip out of the country. Our flight featured two unusual security steps that were visible: every passenger was patted down just before boarding, and no one could bring anything to drink onto the plane, even bottles of water purchased inside security. The first was quick and seemed worth the time. The second seemed arbitrary, and was certainly uncomfortable, since it took two hours for water to reach our row on the plane!

Perhaps what's most striking about the current increase in security is how incomplete our ability to connect the dots evidently is. The information we had about the Nigerian would-be bomber seems, in hindsight, so obviously frightening that our not reacting to it with quick action is hard to understand -- unless, of course, we receive so many worrying bits of information each day that reacting to all the possibly dramatic link-ups would be impossible. Whether the problem was bureaucratic fumbling or information overload, however, it's clear that we don't believe that we can identify all our assailants in advance. It's because we don't believe we can do this that we impose on ourselves the massive inconveniences of airport security.

Of course, it could be that our connect-the-dots security measures are very, very good -- but we have to supplement them with airport security measures because a single failure would be catastrophic. I hope that is the case, but it doesn't feel like it is. Witness the decision to subject everyone from Nigeria to heightened search. Obviously this step is tremendously, deliberately, overinclusive. The week's news suggests that our reason for taking it is that we can't get a clear idea of which Nigerians are actually threats even when we have specific information about an individual named Nigerian. Profiling is never a welcome step, but if we really are as in the dark as this event suggests, then we need something to shed some light on what we face.

How to study lawyer-client meetings: from video recordings without sound?

A thought about how empirical research on lawyer-client meetings might be conducted, given that permitting a third party to be part of such a meeting risks stripping it of the lawyer-client privilege: What if these meetings were video recorded, but with no sound?

It might seem that studying a meeting without knowing what the participants are saying would be meaningless, but that isn't right. One can tell quite a lot about what's going on in an interaction without knowing any of the words being uttered. It's possible to follow the participants' body language and facial expressions; it's possible to see who interrupts whom and with what frequency; it's possible to see who speaks, and for how long at a time -- and probably more. Malcolm Gladwell, in Blink: The Power of Thinking Without Thinking (2005), reports a study finding that "[a] person watching a silent two-second video clip of a teacher he or she has never met will reach conclusions about how good that teacher is that are very similar to those of a student who has sat in the teacher's class for an entire semester." (13)

So these studies would be meaningful. Would turning the sound off do anything to preserve the attorney-client privilege? I'm not sure, but I think it would be worth looking into. It is true that a blown-up shot from the video might reveal legible words in documents the lawyer and client are looking at (as an indiscreet British spymaster recently found, at the cost of his job). It's also true that a lip-reader could probably make out what the lawyer and client are saying to each other. But every communication is subject to being intercepted, and in general we don't require lawyers and clients to take extraordinary steps against this danger in order to preserve the legal privilege protecting their conversation. So it seems to me that an argument could be made that this kind of recording (especially if done without an actual camera operator able to listen in) is consistent with lawyer-client privilege.

Probably most lawyer-client conversations, however, are not really all that sensitive; the client is not revealing dark secrets, nor is the adversary going to go to court to extract them. For the bulk of conversations, the most important effect of proposing to record with the sound off might be simply to reassure the client that his or her privacy really is being respected. That could make it easier for them to consent to the recording. So for reasons of both objective legal risk and subjective perception of privacy, the no-sound recording might be a relatively unobjectionable method of study.

Whether the reason lawyer-client meetings have been so rarely subjected to empirical study is either the problem of legal privilege, or clients' emotional sensitivity, isn't clear. Perhaps lawyers and law professors, even clinicians, just aren't very much disposed to undertake this sort of research -- for reasons that would no doubt be worth discussing in themselves. But if the reason isn't the researchers' disinclination but the reluctance of those being researched, then the no-sound recording might be a partial solution to the problem.

Objective invalidity revisited

The doctrine of objective constitutional invalidity says that when the Constitutional Court declares a law unconstitutional, what that decision means is that the law has always been unconstitutional since the adoption of the constitution in 1996. I blogged about this doctrine on June 11, 2009 and said that this doctrine could not survive the day -- not yet arrived -- when the Constitutional Court overrules one of its own earlier decisions. Even now, however, it produces practical complications, as the Court has recognized for years. In response, as Justice Van der Westhuized said for the Constitutional Court in Weare and Another v Ndebele NO and Others (CCT 15/08, decided 18 November 2008), "[t]he duty to give just and equitable relief recognises that the position dictated by the objective doctrine may not always be a feasible one in practice" (para 42).

Weare addressed the question of whether it was unconstitutional for one province, KwaZulu-Natal, to bar bookmaking by corporate entities, while it permitted bookmaking by individuals and partnerships and while the rest of South Africa permitted corporate entities to practice in this area. The answer, the Court held, was "no," a decision I agree with. Not every difference is an unconstitutional discrimination.

But the case also presented a wonderful technical complication. The KwaZulu-Natal law in question was actually an "Ordinance," first adopted by the "provincial council" of what was then Natal, in 1957. A lower court had declared the Ordinance unconstitutional. But if the Ordinance was a "provincial Act," then under section 167(5) of the Constitution that judgment would be without effect unless the Constitutional Court confirmed it. Now an "Act," it appears, is a piece of original legislation, such as a provincial legislature today would enact. The old "provincial council" would have been the 1957 equivalent of such a legislature -- so far, so good. But in 1986 (still in the apartheid era), Parliament "abolished the provincial councils and transferred their legislative authority to the provincial administrators, who were members of the executive." (para 26) When they acted, by Proclamation rather than "legislation," they were making "delegated legislation" (rules, we might say in the U.S.) rather than "original legislation" (statutes). In fact the Natal administrators did modify the statute of which the no-gambling-by-corporate-entities provision was a part, nine times (though they may not have touched this particular provision). (para 27)

That might have made a big difference to the question of whether the Constitutional Court had to review the lower court's decision to invalidate this section. A piece of delegated legislation lacks the status of being an Act, and under the post-apartheid constitution lower courts can invalidate delegated legislation without the need for the Constitutional Court to confirm their decisions. The constitution's theory for this rule presumably is that invalidating a regulation is not a disagreement with the elected representatives of the people, while invalidating an "Act" is.

But this wasn't the end of the story. Then apartheid ended, and the Ordinances of the old order were carried over to the new era, and the provinces (such as what was now named KwaZulu-Natal), with their provincial Parliaments, acquired original lawmaking authority again. In fact, the KwaZulu-Natal provincial legislature then passed legislation in this field, incorporating the old Ordinance by reference and thus continuing it in effect (para 33), and also amended the Ordinance three times, though not touching the particular provision that this case challenged.

So the upshot was that it was not clear whether an old order Ordinance which, like this one, had once been produced as an act of original provincial legislation, then became the purview of provincial administrators making delegated legislation, then became again the subject of original provincial legislation -- was or was not a "provincial Act." The Constitutional Court decided that it was, an entirely reasonable decision.

But this ruling automatically meant, by virtue of the doctrine of objective invalidity, that any other similar Ordinance that might have been held unconstitutional by a lower court since 1996 without the Constitutional Court's having reviewed and approved the decision had not been validly invalidated! Apparently no Ordinance invalidation case had been brought to the Constitutional Court prior to this one, and so it is possible that there are a number of these invalidly invalidated laws. Moreover, the Constitutional Court's rules provide time limits for litigants seeking confimation of a lower court judgment of invalidity, and those time limits "will almost certainly have expired" by now. (para 41)

What to do? Here is whether the Constitutional Court's authority under section 172(1)(b) of the Constitution -- its "duty," as Van der Westhuizen J refers to it in para 42 -- to "make any order that is just and equitable" in connection with a decision on a constitutional matter comes in. The Court notes that "[c]itizens and the state alike may have treated the orders as binding, it may now be years since the orders were made, and the ordinances might have become irrelevant. New legislation may have replaced them." (para 44) Van der Westhuizen J concludes: "In light of these considerations, no general rule is made as to court orders in connection with the constitutional validity of ordinances that have not been confirmed by this Court. Should the special circumstances of a specific case mean that any injustice or uncertainty does result, parties are of course free to approach this Court or the High Court to seek relief." (para 45)

This was certainly a wise decision. But it is worth noting that it was a decision that would have been unnecessary but for the doctrine of objective invalidity. Absent that doctrine, the earlier decisions would have remained good law, since they were court judgments that were never appealed and so had long since become final. It was only because the doctrine of objective invalidity meant that a decision in 2008 automatically ran back, unqualifiedly, to 1996 that any question about those decisions between 1996 and 2008 arose. This is a case, then, in which a legal theory generated quite unnecessary practical complications.

It's also a striking illustration of two very different aspects of South African jurisprudence. The question of whether an Ordinance is an "Act" is a matter resolved by quite painstaking attention to legal detail. Once that is decided, the resulting question of what to do about the implications of the doctrine of objective invalidity is decided by broad, pragmatic adjustment. The courts have the authority to operate in both ways.

In general, it seems to me that the courts' ability to render principled constitutional decisions and then guide their implementation by practical adjustment is very helpful and appropriate, and has been used to very good effect in South Africa. In most cases, moreover, the kind of reasoning at issue in these two stages of adjudication probably is broadly similar: the judgment of unconstitutionality rests on broad constitutional weighing and the implementation decision takes comparably broad considerations into account. But occasionally, as here, the judgment of unconstitutionality involved quite technical analysis -- and over time there will surely be many relatively technical constitutional questions, given how long and detailed South Africa's constitution is. (For another example, see Kruger v President of the Republic of South Africa (CCT 57/07, decided 2 October 2008.)

I wonder just how wide the gap between the technical analysis of such issues and the practical implementation judgments that follow should be. In principle, I think it might be desirable for South African jurisprudence to evolve so that these two forms of reasoning converge: the technical legal analysis becomes more infused with practical considerations, and the pragmatic adjustments become more regulated by legal rules. There is, I think, some inconsistency in applying technical precision to the determination of the rights and wrongs of the parties before the court, including Presidents and Parliaments, while the courts themselves effectuate their decisions by practical adjustments to the necessities of events. The inconsistency, moreover, is not simply a technical disparity, but may instead have broader significance: in principle, all actors should be subject to similar legal requirements via rules that provide similar degrees of formal precision and functional flexibility. This isn't an absolute or a precise principle, but it seems fair to say that it is a part of the basic idea of the rule of law.

It is not shocking that current South African law reflects such a disparity. South Africa's courts have been engaged in constitutional adjudication for only about 15 years, and they wield broad authority over a tremendous range of controversial issues. They are, it seems to me, still in the process of determining just how to wield their own power. So this post is a suggestion for a direction this process might take in cases to come.

On being immoderate

Watching the John Adams miniseries (I know, long after it came out) -- I'm surprised to realize something that of course was true: the people who made the American revolution were not moderates. It was hard, really hard, for many of the colonists to decide they wished to be independent. Doing so was full of risk, not least the danger of being hung for treason. For many the natural thing, which the new Congress tried in 1775, was to petition the king for a redress of grievances. British rejection of these efforts gradually pushed people towards independence. But so did men like John Adams, who argued passionately in favor of tangible support for the Massachusetts militia in its early battles with the British. Abigail Adams was equally committed, though she could express her desires with more diplomacy than John sometimes managed. But these are not, as a group, the takers of sober counsel, the careful managers of complex situations. These were revolutionaries. It makes one remember that wisdom and tempered judgment are not always the path to the world we want. Perhaps that is because few people achieve expertise in changing the world; most of us, as we age, become experts in managing in the world as it is. So it's the non-experts, full of passion and dreaming of a world that does not yet exist, who can turn the old order over.

"The Hemingses of Monticello"

Fresh from completing my colleague Annette Gordon-Reed's powerful book The Hemingses of Monticello, a book that deserved to win prizes and did:

This book succeeds at the same time in making the evil of slavery palpable and in presenting us with a Jefferson who, within the bounds of the slave system from which he massively profited, is not a bad man. In his relations with the Hemingses -- Sally, his mistress, and the many other members of the same family who lived in slavery at Monticello -- he seems to have always sought to avoid distress and disturbance. He wanted the work, the service and the comfort his slaves provided him, but he wanted the slaves to feel content with their lot too. He was a man who could persuade Sally and her brother James to return with him from France, where they could have claimed their freedom, to slavery in Virginia -- and he honored the promise he made to Sally in the process, that he would free the children they had together. He created an outpost of relative contentment within what he understood was the tyranny of slavery, though this outpost did not survive him. He failed to die a solvent man, and the results of that insolvency were harsh for his white descendants and harsher for his slaves, who were sold to pay the debts of his estate.

What's appalling is not that he mistreated his slaves, for it appears he did not abuse them (though his overseers may have, especially with slaves in less privileged spots than Monticello itself). Rather, what's appalling is the sheer power he exerted over them. He arranged a family of slaves around him for his comfort, shaping many of them from their childhoods to prepare for the roles he envisioned, and as Annette Gordon-Reed emphasizes, they could not leave. Most unnerving of all, he was related to the people he owned. It is hard, as Annette also emphasizes, even to conceive of the nature of family within slavery, from our perspective today, but it is necessary to try. The blood relations between Jefferson's family and the Hemingses were elaborate -- Sally was the half-sister of Jefferson's deceased white wife -- but of course the plainest blood relation was with the children he had with Sally: Jefferson owned his children.

The Jefferson who emerges from these pages is not an incomprehensible assembly of self-contradictions, nor a repellent human being. It seems likely that the Hemingses genuinely cared for him, at the same time that they had to reckon with his sweeping power over them. He is, in a particular sense, a moral monster -- a man with personal sensitivity towards, and moral principles about, others, who lived in and lived off a vile social system.

Merafong Demarcation Forum -- participation and rationality in South African legislation

Merafong Demarcation Forum, decided in June 2008 by South Africa's Constitutional Court, continues that Court's effort to decide how closely it should regulate South Africa's legislative processes. It raises some profound questions about how democratic legislatures should function, and how courts should shape their functioning -- questions I want to identify but don't expect to fully resolve.

The case grows out of Parliament's enactment of legislation to eliminate what were called cross-border municipalities -- local government units whose boundaries crossed the lines between provinces (as if, say, New York City was located partly in New York State and partly in New Jersey). It's probably not surprising that these local governments proved administratively problematic, and no one seems to have disagreed with the general idea that they should be eliminated. The problem was, which single province should a two-province municipality be put in? Draft legislation before Parliament said that Merafong, till then partly in Gauteng province and partly in North West province, should become completely a part of North West. The great majority of the residents of Merafong seem to have felt that they should be in Gauteng (the province in which two of South Africa's leading cities, Johannesburg and Tshwane [formerly Pretoria] are located), rather than in the more rural, less wealthy North West. They said so at public hearings and in demonstrations. (See para 33 of Justice van der Westhuizen's judgment, and para 135 of Deputy Chief Justice Moseneke's dissent).

The public hearings were held by the legislatures of Gauteng and North West provinces, to meet their duty -- established by earlier Constitutional Court decisions -- to provide an opportunity for public participation before the provinces cast their votes on the proposed legislation in the National Council of Provinces, the upper (and less powerful) house of the national legislature. This obligation had been found in section 118(1)(a) of the Constitution, which provides that: "A provincial legislature must -- (a) facilitate public involvement in the legislative and other processes of the legislature and its committees." As a result of the public opposition expressed at the hearings, the Gauteng legislature decided to seek an amendment of the pending national legislation to keep Merafong in Gauteng. Unfortunately, it turned out -- so the negotiators learned -- that they could not propose an amendment and that their only option, if they wanted to insist on their view about where Merafong should be, would be to exercise a provincial veto on this part of the new bill. This the delegates did not want to do and so, in the end, late in 2005, Gauteng decided to vote for the bill, including its provision moving Merafong to North West. (See paras 36-37.)


These events raised two constitutional questions. One was whether the Gauteng provincial legislature, when it decided not to do what it had learned from its public hearing that the people wanted, thereby necessarily violated its duty to provide proper opportunity for public input into the legislative process. The answer was no. Every member of the Constitutional Court agreed, in effect, that legislatures do not have to do what the people have told them they want. This decision puts an outer boundary on popular influence on legislative choices outside of elections, and says that South African legislatures, though they provide for participation, are not forums for direct democracy. It is important, and also seems right. Representatives need to be able to make judgments, in light of popular views but not always bounded by them; otherwise, the nation loses the benefit of the special expertise that its legislators hopefully acquire about the affairs of the state.


The only member of the court who felt that the public participation requirement of the constitution had not been met was Justice Sachs. He didn't suggest, any more than the other members of the Court, that the popular will expressed at the hearings had to rule. (See para 293 of his judgment.) But he did maintain that when the legislature changed its position, it had a duty to "report back" to the community about that change.

The effect of a report back would presumably have been to galvanize community opposition, and so to make it more likely that the legislature would have felt more pressure to defer to community wishes and/or to find some alternative, previously overlooked, to defuse the crisis. Justice Sachs' position might have led the politicians to new insights; it might also have prolonged the decisionmaking process and placed legislators in acutely difficult political situations. Justice van der Westhuizen argued, however, that "[t]he possibility of the Portfolio Committee being persuaded anew by views of which it was already aware, is indeed small." (para 59) Justice Sachs was more optimistic (para 299), but of course we will never know for sure.


Would Justice Sachs' alternative have been better? The aftermath of this decision was not good; one article reports that the result of the decision to move Merafong was that parts of Merafong were "reduced ... to chaos," and that "protests have continued virtually unabated." In this case, at least, it seems arguable that anything that postponed or altered this decision would have been desirable as a practical matter. Whether his approach would have been better for Parliamentary process in general is a much harder question, taking us into a field -- the design of legislative bodies -- that no doubt calls for its own expertise.

Perhaps an even harder question -- and one more within my range -- is whether this interpretation of the relevant constitutional language was the best one. That question isn't just about whether a legislative process including not only required public hearings but also "report backs" would be preferable to one where legislators are freer to make decisions on their own. It's also about whether the "report back" system should be read into the constitution if -- as seems to me likely -- it was not a system the constitution's drafters actually had in mind. It is not illegitimate to find in a constitution meaning that the drafters did not specifically intend (or so I would argue -- the point can be debated), but it is possible that on a point of political process as debatable as this one, a judge should be disposed not to innovate. So the other members of the Constitutional Court appear to have felt, at least on this score.


But those abstractions of constitutional theory may miss the most important point: that political life in South Africa has proved less responsive and less responsible than many of those who shaped the new constitution hoped, and therefore, perhaps, what the drafters did not think of is exactly what might now be needed. Should the justices, faced with problems the drafters did not foresee, seek to honor the drafters' broad intentions (for democracy, for justice) by finding solutions to those problems in constitutional language not specifically meant to require those results?

This is another very big question. But in this particular case it seems to have an answer. In 2009, Parliament approved another amendment to South Africa's constitution, this one returning Merafong to Gauteng province. It took years, but not an infinite number of years -- and in the end the political process corrected its own mistake. It's surely preferable, in principle, for politicians to work their own way clean, rather than to have the country come to expect only the courts to stand for principle. Here, that is what happened.

Sort of. Because that self-cleansing came only after the case had gone to the Constitutional Court, where 4 of the 10 justices would have struck down what Parliament had done. Perhaps the dissents (I've focused here only on one, by Justice Sachs) helped push the government to correct a decision that seems to have profoundly unwise. So even if the majority justices were right to uphold the constitutionality of that decision, the dissenters may also have helped cause it to be repealed.