The Permanent Campaign - A Lament

Yesterday President Obama delivered his State of the Union speech. I liked the speech -- I thought it was hardhitting and at the same time deftly framed to feel almost irrefutable. But that's not the point of this short post.

What I wanted to mention here is that over the past 48 hours, or in other words the day of the speech and the day after, I've received about 15 e-mails from the President (needless to say, not individually written to me) and Presidential aides to enlist me, in one way or the other, in supporting him and the speech. Some were duplicates, but the total may actually have been more than 15, though I must admit I don't read them all so I'm not absolutely certain I'm characterizing all of them correctly.

I am sure, however, that President Obama and his political aides believe the campaign has never ended, and will never end. They're probably right. If this is the price of defeating the Tea Party and its allies, I agree that it's worth it (though believing that doesn't make me read all the messages). But the fact that the campaign goes on forever is itself an element in the polarization of our lives -- in which there apparently can no longer be a moment when all that citizens are asked to do is think, rather than mobilize. 

Watching "Zero Dark Thirty"

In the story "Zero Dark Thirty" tells, torture contributes to the successful hunt for Osama bin Laden. The controversy over whether this story is historically accurate is intriguing for its political intensity, and worth discussion on that ground alone, but in the end the answer to the question “who learned what and how” in the pursuit of bin Laden by no means is an answer to the question of whether torture can actually be justified.

First, the controversy over the facts. In a December 19,2012 letter to Michael Morell, Acting Director of the CIA, Senators Feinstein, Levin and McCain cited a finding of the Senate Select Committee on Intelligence in its study of the role torture had played:

The CIA did not first learn about the existence of the UBL [Osama bin Laden] courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier's identity from CIA detainees subjected to coercive techniques. No CIA detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which UBL was hidden. Instead, the CIA learned of the existence of the courier, his true name, and location through means unrelated to the CIA detention and interrogation program.

But at least in most respects the film does not contradict this account. The film may portray the interrogators as having first learned of the courier’s existence from a tortured detainee – and if the film does tell the story in this way, that would be inconsistent with the first element of this Senate committee’s finding. But the film in fact makes clear that the courier’s identity was not learned from anyone’s revelation under torture. Instead, according to the film the courier’s identity was found in a file that had been overlooked for many years; none of the people tortured had referred to the courier by anything except a nom de guerre, and no one had provided his whereabouts. The CIA analyst who discerns the centrality of this elusive figure does so by recognizing a pattern of nondisclosure – men who revealed other things remained discrete about the courier, and that very lack of disclosure emphasized his importance.

The Senators’ letter also quotes confirmation of the Committee’s finding that Leon Panetta provided in a letter to Senator McCain in May 2011. Panetta wrote:

… no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.

Again, the film’s account does not contradict this statement. What the film says is that interrogations, including interrogations with torture, provided evidence of the courier’s existence and – through silences – pointed to his importance. What Panetta wrote does not contradict this account, nor (except, as noted, in one significant respect) does the Senate Committee’s finding. 

It seems clear that the facts about what the interrogations elicited can be spun in very different ways. It is interesting that the Senate Committee and Secretary Panetta construed the facts in a way that minimized the role that torture played. That reading supports a commitment to turn away from torture as an instrument of war.  Perhaps there are some within the CIA who have a different agenda, meant to vindicate the reputation of an agency tainted by the practices of the Bush years. It seems pretty clear -- as the Senators’ letter emphasizes – that the CIA talked with the filmmakers, and it seems reasonable to infer that the story the film tells is the story the CIA told. One might also infer that the Senators, who have labored hard to remove torture from US anti-terrorism efforts, feel blindsided by the story the CIA seems to have told to the filmmakers and that the film has now told the world. 

But, second, what does this controversy prove? To me the argument seems somewhat misguided. I don’t doubt that people who are tortured will often reveal information – they have agonizingly good reason to do so. No doubt they will also often distort what they say in any way they believe they can get away with, or give up some information but hold onto other more vital facts, and no doubt they will also sometimes invent facts either as diversions or as desperate efforts to please their tormentors. All of these make the information derived from torture suspect, but to me it is simply implausible to believe that no accurate information is elicited this way.

If the torture of Al Qaeda detainees really produced a telling pattern of nondisclosure of information about this courier, though, that’s actually quite odd. On this account, torture failed again and again to elicit this information; apparently a series of Al Qaeda detainees were able to draw the line against revealing this particular set of facts. If that were so, it would actually be some indication of the inefficacy of torture. Or perhaps what the pattern of nondisclosure means is not that the detainees somehow all resisted this last revelation, but rather that none of them had this information to disclose – which might indeed have suggested, tellingly, that Al Qaeda was very tightly controlling access to this information. But the film also tells us that the CIA inferred that bin Laden was in his refuge because more women than men were visible in surveillance photos of the building; the missing man, they inferred, could be bin Laden. That inference makes no sense at all, because Muslims can be polygamous (as bin Laden himself was). The presence of more women than men therefore didn’t demonstrate the existence of a missing man at all. It seems possible that the CIA analysts were right, but for the wrong reasons – and perhaps the pattern of silence about the courier was not so much a pattern as an inspired guess on the part of the investigators.

In any case, the issue about torture shouldn’t be whether it ever produces useful information. Rather the question should be whether the sometimes useful, sometimes useless or misleading, information is worth the price. One part of that calculus is the question of whether the same information could have been obtained in other ways – as the movie tells us that the crucial detail of the courier’s real name was. Another part, a crucial part, is the question of whether the harm done to the country by its embrace of torture outweighs – in moral terms, and in pragmatic terms as well – the value of whatever revelations torture might have produced. I think we should demand far more proof than the story this film tells (even assuming it is entirely accurate) to overturn the lesson that torture is wrong.

The film tells a version of the story of how the U.S. killed Osama bin Laden. It does not tell us whether we might have achieved that objective better by other means. It does not even tell us whether achieving that objective ultimately mattered. It’s worth remembering that the hunt for bin Laden was certainly not a “ticking bomb” situation, where – as in “24” – only immediate, horrible acts could forestall even worse impending disaster. The day I watched the film was the day of the bloody end of a hostage crisis in Algeria, where Islamic militants -- not necessarily even Al Qaeda affiliates but perhaps a group split off from Al Qaeda -- seized the In Amenas natural gas plant in an operation presented to the world as a response to French military intervention in Mali against other Al Qaeda members or allies. Do we live in a more secure world because of Osama bin Laden’s death, achieved – if the movie is accurate – in part through the use of torture? It is not easy to reassure oneself that we do.

Human rights law, in South Africa and Israel

Why has Israeli public interest law not succeeded in contributing to the end of Israel's occupation of the West Bank?

One possibility is that the strategy by which the lawyers shaped their work was mistaken. Daphna Golan and Zvika Orr, two Israeli scholars with deep roots in public interest advocacy themselves, have recently suggested this in an incisive and dismaying article,  "Translating Human Rights of the 'Enemy': The Case of Israeli NGOs Defending Palestinian Rights," 46 Law & Society Review 781 (2012). Golan and Orr write that:

Depoliticization of the work of Israeli NGOs has proved ineffective, not merely in terms of the ongoing and increasing human rights abuses in the Occupied Territories, but also in terms of the way in which the NGOs are commonly perceived by the Israeli public, legislators and government. (809)

They conclude:

[W]e propose that contemporary attempts to silence the translators of human rights violations [that is, public interest advocates] should signal to activists the need to reconsider some of their current depoliticized strategies and to think of new ways to broaden the understanding of their role in leading a process of fundamental change, which not only will ensure that the occupation complies with international law but will end the military occupation of Palestinian territories. (810)

Given how far Israeli politics have moved away from a commitment to finding a negotiated solution to the problem of the Occupation, it is entirely understandable that"activists' general feeling ... is one of despair and powerlessness to bring about a fundamental and deep change." (808) But I'm not sure that the reason for this state of affairs is that the public interest activists made strategic mistakes, or indeed that they made strategic mistakes at all.

To take the last point first: sometimes the good guys don't win. The forces driving Israeli and Palestinian politics away from negotiation and perhaps to endless confrontation and injustice are deep and powerful. Terror, anger and growing religious fundamentalism may simply be too much for any strategy to overcome. If the advocates of a different course have not succeeded, that may not show that they made any mistakes. Legally speaking, meanwhile, it seems to me that Israeli advocates have actually done rather well – not ending the Occupation, of course, nor ridding it of injustice, but winning judgments in a number of important cases that imposed some genuine constraints on the Israeli government.

I'm also not sure that pursuing a depoliticized strategy was a mistake. I must emphasize that I don't say this based on an understanding of Israel, of which I'm just a concerned observer. But I was struck by Golan and Orr's explanation of the difference between the impact of anti-apartheid lawyering in South Africa and the results of public interest efforts in Israel. They write that "law played a central role in the struggle against apartheid. Yet in South Africa the struggle for legality and basic civil rights was inseparable from the overall political struggle." (796)

It is certainly true that legal efforts against apartheid were part of a much broader social and political movement. But that alone may only remind us that in South Africa the movement against apartheid grew stronger and the government's resistance lost conviction. The larger politics broke against apartheid; within Israel, politics have not broken against the Occupation. Without a strong political movement to link with, activists' options are limited.

It's also not quite right to say that the legal efforts in South Africa were "inseparable" from the political struggle. In one sense, certainly, this statement is correct: the lawyers advocating for human rights were seeking goals that the movement broadly shared. But in that sense I think Israeli activists are also aligned with the political struggle against the occupation.

In another sense, however, many South African anti-apartheid lawyers did their work in ways that were distinct from the political struggle. The most important public interest law organization of the day was the Legal Resources Centre (LRC), which was co-founded and led by Arthur Chaskalson. (I wrote in this blog, with sorrow, about my friend Arthur’s death last fall.) Arthur, an absolutely determined foe of apartheid, nevertheless shaped the LRC as an organization expressing the highest traditions of the bar – legalist traditions rather than explicitly political ones. LRC lawyers, and I think anti-apartheid lawyers in general, challenged apartheid in its own courts by making the arguments that the South African legal system permitted. It was, I think, in good part their ability to present themselves as acting within the bounds of the system that contributed to their legal successes.

I wonder if Israeli human rights lawyers have been the victims not of strategic mistakes but of too much success. In South Africa, as apartheid ground on through the 1980s, no one thought the courts were an institutional force opposed to the government; what was remarkable was that occasional liberal judges, and even occasional conservative judges, ruled against the government. The victories may have meant more because they were more grudgingly yielded by the judicial system. As a result, one can speculate – though only that – that supporters of apartheid may have found these victories more unsettling than Israelis committed to the Occupation do. One can also speculate that the legal system in South Africa was so plainly unsympathetic to the anti-apartheid cause that no one really needed to argue about whether the lawyers fighting against apartheid in the courts were or were not fundamentally aligned with the political struggle.

Israeli activist lawyers, in contrast, have had the good fortune – and perhaps the mixed blessing – of appearing in courts committed to binding Israel to the rule of law. Perhaps the result has been to make the rule of law appear more politically charged than it did in South Africa, and perhaps the result is that when political winds turned against Palestinians those same winds began to blow at the edifice of law. Perhaps conservative Israelis now find it easy to write off the zone of legalist rights-consciousness as simply a political project. (David Remnick writes in “Letter from Jerusalem: The Party Faithful,” in this week’s New Yorker (Jan. 21, 2013), at 42, that Israel’s “[r]ight-wing politicians have long railed against what they see as the dominance of leftist élites in the media, academic, human-rights organization, and, especially, the Supreme Court – the nemesis of the far right – but they do so now from an unassailable position of power.”) And yet it would have been very hard indeed for lawyers to resist the courts’ receptivity to their arguments.

For all these reasons I’m not convinced that Israel’s public interest advocates have made mistakes. It might still be the case that the right move for lawyers now is to become more overtly political. "Politicization" exists on a spectrum, and some shift by Israeli lawyers may prove fruitful. I'd only say that shifting too far may be a mistake; the moral resources of the rule of law are powerful levers, not lightly to be put down. But I certainly don’t know what the best course now is, and I don’t at all envy the Israeli scholars and lawyers who after years of dedicated and difficult effort must wrestle with the question of how to challenge an occupation that has not ended but grown more entrenched over the 45 years it has been in place.  

Moral thinking -- and how we ask about it

I found myself thinking the other day about how important the framing of the question is to the answers you’ll get – even in such a subtle area as the understanding of people’s moral thinking.

Here’s a famous moral question, framed to help gauge the answerer’s level of moral development: the Heinz dilemma posed by Lawrence Kohlberg. As quoted in Wikipedia from Kohlberg’s Essays in Moral Development, Vol. 1 (1981), it reads:

Heinz's wife was near death, and her only hope was a drug that had been discovered by a pharmacist who was selling it for an exorbitant price. The drug cost $20,000 to make, and the pharmacist was selling it for $200,000. Heinz could only raise $50,000 and insurance wouldn't make up the difference. He offered what he had to the pharmacist, and when his offer was rejected, Heinz said he would pay the rest later. Still the pharmacist refused. In desperation, Heinz considered stealing the drug. Would it be wrong for him to do that?

Should Heinz have broken into the store to steal the drug for his wife? Why or why not?

Carol Gilligan, in her book In A Different Voice: Psychological Theory and Women’s Development  (1993), famously contrasted 11-year-old Jake’s perception of this problem as “‘sort of like a math problem with humans,’” to be resolved using an ethic of rights, and 11-year-old Amy’s contrasting response of framing the issue as arising in “a narrative of relationships that extends over time,” to be addressed using an ethic of care. The two responses are strikingly different , though whether that difference reflects a gender difference in ethical thinking is another, and complex, question. What’s striking to me now is a point that Gilligan may also recognize, but as far as I now recall does not make central: that the presentation of the problem itself potentially shapes the answers it elicits.

            To put the matter more directly, Kohlberg’s question is precisely designed to pose an ethics question that is like a math problem. It’s meant, as many a law professor’s Socratic question is, to exclude all possible issues except one: in this case, the sheer conflict between two claims of moral right (respect for property and respect for life).

Those questions have their uses, in particular for encouraging students to practice skills of precision in identifying issues and reasoning about them. The price of asking such questions, however, is that if they work they narrow discussion and thought down to whatever line of reasoning the professor wants to focus on. They may also implicitly devalue, and they certainly aim to disregard at least for the moment, the many other thoughts and concerns that students may want to bring to bear on the matter at hand.

Perhaps these questions also reflect something true about the world – that sometimes stark choices must be made. But this claim is debatable. It’s been debated, in fact, in connection with the “ticking bomb” scenarios often advanced as the basis for moral argument about torture. If the ticking bomb scenario appeared in the actual world, its resolution might be a matter of constructing the right hierarchy of rights, the right of the terrorist not to be tortured and the right of his imminent victims not to be killed. But in the real world, there may never be a question so stark as the ticking bomb scenario’s assumed facts – which imagine that we know exactly who might have to be tortured, under circumstances so urgent as to admit of no alternative except immediate action. As some very thoughtful observers have argued, if the real world is messier than the scenario, then thinking about the ticking bomb scenario may be a beguiling distraction.  

But whatever the virtues and defects of these questions, for pedagogical or truth-seeking purposes, their power as questions is important to recognize. If we ask an 11-year-old, or a 45-year-old, a math problem about morality, it seems reasonable for us to predict that he, or she, will respond with a math answer about morality. Does that mean that the person answering actually views morality as a math problem? Perhaps – that would be one reason to respond this way. But perhaps not. Maybe he, or she, understands the question as ruling out any choices except (to use the Heinz dilemma in particular) to steal or not to steal. The question as phrased doesn’t quite do that, and it might take a much longer problem to explicitly exclude all other options. Still, the problem does seem meant to be understood this way. Maybe the person answering the question views questioners as entitled to answers that address the sort of question they meant to ask. Maybe he, or she, also assumes that math problems are problems to be responded to with math answers.

One might say a lot about the psychological traits these inclinations reflect – a conformance with authority, possibly, or maybe a generous desire to help the questioner. But whatever one might say on those scores, and whatever those observations might have to do with gender, they wouldn’t necessarily have much to do with whether the person being questioned thought about morality in terms of rights or relationships.

Here as elsewhere it’s very important to ask the right question. Otherwise the chance you’ll get the wrong answer has to increase.

Remembering Arthur Chaskalson

Arthur Chaskalson, a truly great man, died yesterday, December 1, 2012, in Johannesburg. The list of his achievements is almost unbelievable: Fifty years ago as a young advocate (that is, a courtroom lawyer) he helped represent Nelson Mandela in the case in which Mandela was sentenced to life in prison – a victory, since the only other alternative was death, and a victory that meant a great deal to South Africa’s future. In 1979, along with the distinguished lawyer Felicia Kentridge, he founded the Legal Resources Centre, which distilled the lessons of the NAACP Legal Defense Fund’s practice in the United States to become South Africa’s leading public interest law organization – and to win cases challenging apartheid, in apartheid South Africa’s courts. Then he took up the task of representing the African National Congress as one of its principal negotiators in the drafting of South Africa’s first post-apartheid constitution. That constitution created South Africa’s Constitutional Court, the first court in South Africa with authority to enforce a constitution that genuinely protected human rights. Arthur became the Constitutional Court’s first President and then, as this Court’s centrality to South Africa’s legal system became evident, he became Chief Justice of South Africa. And after he retired as Chief Justice, he served as President of the International Commission of Jurists, and in that position he led the ICJ’s incisive examination of the US “war against terror” and its uneasy relationship to law and human rights.

I had the great good fortune to be one of Arthur’s friends for the past 25 years. Our friendship began when we taught a course on “Legal Responses to Apartheid” together at Columbia Law School in 1987. Arthur’s own scholarly approach to South Africa’s law – he was a passionate opponent of apartheid who achieved results in part by being a dispassionate scholar of the law as well – helped me to realize that if I was going to talk about South African law I had to study it as hard as any other body of law, because South African law was easy to denounce, but not so easy to understand. Then he invited me out to South Africa, and I went, in the summer of 1988, and spent three weeks, mostly staying at the Chaskalsons’ home and meeting anti-apartheid lawyers whose work I admired immensely. Those experiences (and other wonderful opportunities I had to teach with and get to know South Africans opposed to apartheid) shaped my professional career, setting me on a course of research and writing about South Africa that remains a central part of what I do, and connecting me to people I’ve remained friends with ever since.

I remember Arthur for the profound impact he had on my professional life, and of course for the extraordinary series of achievements of his own career – enough for several successful lifetimes! But like many others, I also remember him for his humanity. He and his wife Lorraine, also a dear friend of mine, opened their house to their friends. I remember discussing the wellbeing of the many cats living in their backyard, the impolite meanings South Africans and Americans gave to certain Yiddish words, and the important question of how much to wash dishes before putting them in the dishwasher (I believe he and I both belonged to the “a lot” school). I also remember the phone service going dead, presumably in an effort by the apartheid police to prevent Arthur from planning legal strategy, during my first stay in their home. Arthur stayed the course despite that kind of pressure – and the last time we visited in South Africa, he took my wife Teresa, my son Dave and me to the Constitutional Court, and Dave sat next to him in the chairs the justices of that Court use to hear the issues that arise under a democratic constitution.

Flags will be at half-mast in South Africa all this week in remembrance of Arthur Chaskalson. He will be very much missed there, and here.

Thanksgiving

To celebrate Thanksgiving with family and friends, with an abundance of food and in a house with power, is to have a great deal to be thankful for. The assault of Hurricane Sandy on New Jersey and New York has been a reminder, an all too vivid reminder, of how fragile the elaborate social and technological systems are that maintain us. Some people lost their lives as a result of that fragility. Many more people suffer daily around the world in circumstances that are fragile, or worse, all the time. As we enjoy the return of our normal life, we have plenty of reason to recommit ourselves to building a world in which everyone’s normal life is worth giving thanks for.

"For Martin Chanock: Essays on Law and Society"

Hot off the presses: “For Martin Chanock: Essays on Law and Society,” Volume 28, Number 2 of the Australian journal Law in Context, available here. I edited this issue, with Heinz Klug and Penelope Andrews, and all of us were very pleased to have the chance to help celebrate the work of Martin Chanock, a remarkable historian of African and South African law, and someone we’ve known and liked for many years.

For those who are interested, the editors’ introduction frames the issue and discusses the eight articles which appear in it, all of which respond in one way or another to Martin’s wide-ranging work. We also quote the eloquent personal tribute to Martin from Jianfu Chen, the former Head of School at La Trobe University School of Law, where Martin is now an Emeritus Professor; Jianfu said that Martin exemplified “decency,” and explained that “the seemingly easy task of being a decent person demands the output of the highest quality of human beings: honesty, integrity, passion, and compassion.” (Page 6)

I also wrote one of the eight articles, “A Bittersweet Heritage: Learning from The Making of South African Legal Culture.” Martin’s book, whose full title is The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2001), is (I said) a “deeply unsettling …. argument that race was at the heart of the entire enterprise of South African judging, not only the regrettable decisions but also the admirable ones.” (Page 76) I am inclined to think that this argument is correct, provided it is understood as a systemic observation rather than an appraisal of each and every judge – since there were individual, remarkable judges who waged legal battle against apartheid even as they held office under it. In the article I sought first to understand how Chanock’s argument could indeed be true, or more precisely to understand how even upright judges, capable of decisions that helped preserve the claims of human rights through very dark days in South Africa, were nevertheless people of their time and not somehow disconnected from its appalling problems.

But then I asked whether it followed, if Chanock’s appraisal was correct, that the right response today, as South Africa seeks to eliminate the taint of racism in its law and its life, is to disestablish entirely the institution of judging as it was practiced before the end of apartheid. My answer to this question was and is “no.” The old system’s formalism, with its “austere, independent judiciary, engaged in determination of outcomes through the application of a highly rationalised and complex logical process” (page 84), certainly needs reshaping. Its elitist manner should be diminished and its substantive reasoning made to rest on the new egalitarian liberty embodied in the constitution – changes that the Constitution, and the Constitutional Court, have aimed to accomplish. But the fundamental stance of judicial objectivity, the aim of judging “without fear, favour or prejudice,” the commitment to the idea of judges as experts on the law – all these, I urged, are both a kind of formalism and integral to liberty, in South Africa and throughout the world.

I’ll set out here the last few lines of the piece (page 88):

If the courts are to listen, and to help shape a country in which other government actors also listen, then perhaps what South Africa needs is not to beware of formalism but to beware of formulas. Let us seek a constitution of no slogans, in which courts – continuing their historic role of providing a measure of independent judgment about society – deepen their contribution by being as sensitive as possible to the entitlements, and imperfections, of all who come before them.

And the other seven articles are interesting too!