Clear and unclear laws, and lawyers' role in interpreting them

How should the government's lawyers interpret the law?

The more the government's officials and actors feel bound to stay within the law, the more important this question of interpretation becomes. As I mentioned in a post yesterday, Jack Goldsmith saw the Bush Administration's most senior lawyers as appalled at the idea of the President engaging in deliberate violation of the law. Jane Mayer's account of these years, which I discussed in an earlier post, suggests that some weren't quite so anxious on this score. But Goldsmith adds an important institutional point: the sheer number of lawyers contributes to the momentum of legal compliance. He notes that "[i]n the 1970s the CIA had only a handful of lawyers. But as legal restrictions on CIA activities grew, and despite huge personnel cuts in the 1990s, the number of CIA lawyers rose and rose, and today stands at well over one hundred. The number of lawyers in the Defense Department grew even more steeply during this period, and today stands at over ten thousand, not including reservists." (The Terror Presidency, at 91).

So, then, how should these lawyers interpret the law? It is hard to disagree as a general matter with Goldsmith's evident view that we do not want our government caught in "a paralyzing culture of risk-averse legalism." (94) But consider, for instance, the possibility that the government's use of lethal force in a particular situation (say, in controlling crime on a New York street) might amount to murder. If there is doubt about whether particular acts might constitute murder, we might say, we want the government to stay clear of them altogether. We routinely say, similarly, that it is better to let 10 guilty people escape conviction than to wrongly convict a single innocent defendant.

It is true that even in the context of criminal justice (even the ideal version of criminal justice, let alone the gritty reality playing out every day in streets and jails and courtrooms), we do not want "a paralyzing culture of risk-averse legalism." No one could want that, as such. What we want are protections that effectively prohibit wrongful acts while effectively permitting lawful ones. But in fact the law may not provide clear and unambiguous rules, and sometimes it arguably shouldn't -- when vaguer and more contextual "standards" better implement the law's purposes. In any event, when the law isn't clear and unambiguous, lawyers can't say that it is.

This point cuts both ways. Just as there may not be clear authorization in the law for acts that soldiers or intelligence agents believe are necessary, so there may not be clear prohibition in the law for acts that defenders of human rights say are abhorrent. Even saying we should be risk-averse about murder is not such a simple matter, because what is murder in times of peace may well be lawful killing in times of war, and whether we are in times of peace or war may well be a cloudy question. Questions like these in fact plagued the Clinton Administration, as it contemplated trying to kill or capture Osama bin Laden. Goldsmith appears to criticize "the lawyers' refusal to be clear about what constituted self-defense, or about how imminent a threat Bin Laden must pose before the CIA operation could commence." (95) But these were actually hard questions, and clarity about them may have been unattainable.

Goldsmith, I think, believes that government should be prepared to take risks and to protect the individual risk-takers -- rather than, for example, encouraging CIA agents "to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations." (95) But he also surely favors clarity where clarity is achievable, and believes that some clarity can be found in the law. Moreover, he is well aware that the agency he briefly led, the Office of Legal Counsel, has a special role here: if it says that some action is legal, then it is just about inconceivable that someone who acts on the basis of that advice can be successfully prosecuted for what he or she has done. OLC has "the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws .... the power to dispense get-out-of-jail-free cards." (97)

So, then, what interpretive approach should those who can dispense get-out-of-jail-free cards follow? More on that in coming posts.

Staying within the limits of the law -- and what are those limits?

In a book full of startling details, one of the most striking incidents in Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration (2009, 2007), is the story of his raising the possibility that the President might simply disobey the law as part of the fight against terrorism. (80) The idea of conscientious Presidential lawbreaking is certainly troubling, but (as Goldsmith explains at 80-81) it is not necessarily disrespectful of the rule of law, if the President in effect says to the country, "Here is what I've done because I felt you needed it done. If you disagree, I stand ready to suffer the consequences."

But the reaction of Goldsmith's counterparts in the Administration was simply stunned amazement. "Gonzalez and Addington [counsel to Bush and Cheney, respectively] looked at me as if I were crazy." (80) They were not about to have President Bush deliberately violate the law. This from an administration notorious for having, as it seemed to many (including me), disregarded the bounds of law repeatedly! But that's the point -- the Bush Administration saw itself as bound by law, but (overstating a bit) declined to see any boundaries in the law.

Putting that point less pejoratively, Goldsmith writes that "Michael Hayden, former NSA Director General and now [in 2004] the Director of the CIA, would often say that he was 'troubled if [he was] not using the full authority of the law' after 9/11, and that he was 'going to live on the edge,' where his 'spikes will have chalk on them.' Hayden's view permeated the executive branch after 9/11, and in light of the clear public demand to act aggressively to stop the terrorist threat, I agreed with it. My job was to make sure the President could act right up to the chalk line of legality." (78)

Goldsmith believed that "even blurry chalk lines delineate areas that are clearly out of bounds" (78), and in his short tenure as head of the Justice Department's Office of Legal Counsel (OLC) he courageously withdrew a number of OLC opinions that he concluded had breached those bounds. But it seems fair to say that the gist of the torture opinion that John Yoo wrote and Jack Goldsmith withdrew was that in the end the various legal restraints thought to bar the President from authorizing torture were either so full of holes or so beyond constitutional authority that in fact the President's power was unlimited.

My impression is that once it is important to find an argument for a legal proposition, there is almost always an argument to be found. In fact, once money and time are applied to a legal problem, the chances are that many arguments can be found. That doesn't mean those arguments are correct, or convincing, but they are within the bounds of plausibility. Indeed, if the bounds of plausibility are simply the bounds of what conventional argument will accept as worth saying, the sheer repetition of a claim by people with prestige and influence is likely to expand the conventional bounds enough to bring the claim within them. All of which poses the question of whether Goldsmith was right that there really were chalk lines that separated what was lawful from what was unlawful. To our good fortune, Goldsmith felt there were and acted on that conviction; but was he right? That's a subject for posts to come.

Clinical Theory Workshop 25th Anniversary Conference

I can't resist reporting here that this conference -- an anniversary party for the Clinical Theory Workshops, which I've chaired for 25 years -- took place last weekend, October 1-2, 2010, at New York Law School. The theme was "Twenty-Five Years of Clinical Scholarship: What Have We Learned, and What Should We Work on Next?" Possibly that question wasn't completely resolved, but the discussions along the way were great. You can see much more information about the conference at the New York Law School conference webpages.

I'm so grateful to everyone -- planners, presenters, facilitators, attenders (not to mention actors, songwriters and other mockers who took part in a gentle roast of yours truly) -- for all the effort they put into the conference. And the workshops, 25 years old and going strong, are the work of all of us who attend and have aimed over the years to build a forum that is serious, supportive, constructive and fun all at the same time. Thank you to all! Borrowing from the song lyrics that Bob Dinerstein wrote for this weekend, don't say nothin bad about our workshop!

The incomplete Commander-in-Chief power, as seen in 1805

Here's an interesting old statute, enacted by Congress in 1805: "An Act for the more effectual preservation of peace in the ports and harbors of the United States, and in the waters under their jurisdiction." Act of March 3, 1805, ch. 41, 2 Stat. 339. The first section deals with apprehending alleged violators of federal laws who are on foreign armed vessels in US ports. It permits a federal court to issue a warrant for a marshal to arrest the alleged wrongdoer. Then it continues:

"And if the said marshal shall deem the ordinary posse comitatus insufficient to insure the execution of the said warrant, he shall apply to the said judge or justice, who shall immediately issue his order, directed to any officer having command of militia, or any officer having command of regular troops, or of armed vessels of the United States, in the vicinity, requiring him to aid the said marshal with all the force under his command, or such part as may be necessary in executing the warrant aforesaid. And the said marshal conforming himself in all things to the instructions he shall receive from the President of the United States, or from any other person authorized by the President, shall first demand the surrender of the person charged with the offense; and if delivery be not made, or if the marshal be obstructed from making the demand, he shall use all the means in his power by force and arms, to arrest the offender, and all others who are with him, giving him aid and countenance in evading the arrest ...."

Section 2 of the statute gives a similar power to state governors, when seeking to enforce state warrants. It provides that "it shall be lawful for the governor or other supreme executive officer of the state in which the said offense shall have been committed, upon due proof thereof, and upon his being satisfied that the ordinary posse comitatus is insufficient to insure the execution of the said process, to issue his order to any officer having command of regular troops or armed vessels of the United States, in the vicinity, requiring him to aid the officer charged with the execution of the process, with all the force under his command, or such part thereof as may be necessary, in arresting the offender and all those giving aid and countenance in resisting the civil authority." Section 2, interestingly, doesn't include the instruction contained in section 1 for the forces so employed to conform themselves to the President's instructions.

These are really quite remarkable provisions. The President and only the President is the Commander-in-Chief, but these two sections require federal judges, and authorize state governors, to issue orders to federal troops. It is startling to see anyone authorized to issue orders to federal troops except the President and those below the President in the chain of command. It's even more startling to see federal judges authorized to do so, since we are accustomed today to think of judges as ill-suited even to review military decisions, much less to issue orders for the use of troops against foreign armed vessels. And perhaps it's most startling of all to see state governors empowered to issue orders embroiling federal troops with foreign armed vessels; if there is anything clear in the Constitution, it is that the federal government is the principal holder of authority to use force against foreign nations.

It is true that the marshal in section 1 must comply with instructions given by the President. Perhaps the troops ordered into action by state governors under section 2 must do the same, though that isn't explicit in that section. But this requirement seems to mean only that the President specifies how the federal forces will carry out the requirements imposed by judges or governors -- the power to impose the requirements remains with them, and thus not with the Preside

And yet -- the Eighth Congress, in 1805, apparently saw all this differently. They did not, to be sure, view this statute as routine (section 9 is a sunset clause, with a total duration of less than 4 years). But they did, we must assume, view it as constitutional. It is very difficult to square that view with an uncompromising assertion of the President's Commander-in-Chief power as exclusive and largely beyond Congress' regulation -- the assertion that underlay so much of the Bush Administration's approach to the difficult issues of war.

"Ghost Wars" and our struggles with Al Qaeda and the Taliban

Thoughts on reading Steve Coll's Ghost Wars (2004): It's clear from this book that Afghanistan is a place we ignore at our peril. It's also clear that this is a most unhappy land: Coll's 576-page narrative covers less than 25 years of Afghanistan's history, from roughly 1979 to 2001.

But the book, subtitled The Secret History of the CIA, Afghanistan, and Bin Laden, from the Soviet Invasion to September 10, 2001, also makes clear that we have been locked in struggle with Osama bin Laden since years before 9/11. As early as 1998, it seems, President Clinton signed a secret "Memorandum of Notification (MON)" which "authorize[d] the CIA or the Pentagon to shoot down bin Laden's helicopters or airplanes under certain circumstances. There was no pretense in this MON that bin Laden would be captured for trial." (427) Earlier in 1998, we had very seriously considered, but ultimately rejected, a plan for Afghan fighters to try to capture bin Laden at "Tarnak Farm," a compound near Kandahar where family members lived and he periodically visited. Jack Goldsmith, in his book The Terror Presidency (2007) (which I'll have more to say about in a future post), writes that "the Office of Legal Counsel in the Clinton administration secretly concluded in the 1990s -- as a prerequisite to its efforts to capture and if necessary kill Osama Bin Laden -- that the United States was in an armed conflict with al Qaeda.

But these efforts failed, and not long after the decision not to attack Tarnak Farm, bin Laden's agents successfully bombed US embassies in Kenya and Tanzania. (And we in turn attacked what we believed were Al Qaeda targets in Afghanistan and Sudan with cruise missiles.) It's worth emphasizing that the embassy bombings were only a small part of the overall effort bin Laden had come to lead. One reason to reject a war paradigm in favor of a crime paradigm in dealing with terrorism is that particular terrorist attacks may be mounted by just a few people, as was the case on 9/11, and so they can have the feel of crimes rather than military assaults. But bin Laden was leading a large operation/movement, training volunteers, financing attacks, binding Afghan's Taliban to him, and aspiring to reshape the life of countries in the Middle East and Central Asia. In 1998 he and others had declared in a manifesto that "[t]he judgment to kill and fight Americans and their allies, whether civilians or military, is an obligation for every Muslim who is able to do so in any country." (381) It seems to me that it's precisely for threats of such magnitude and reach that a military paradigm is designed.

The judgment that an attack on Al Qaeda required an attack on the Taliban also seems supported by this book. It is true that Taliban leaders may have sometimes professed an intention to disentangle themselves from Al Qaeda (notably, in a meeting between the Taliban's Mullah Omar and Saudi intelligence in June 1998 (described by Coll at 400-02). In fact many US policymakers spent years advocating and seeking connection with what we hoped were potentially moderating forces among the Taliban. But by 2001 we had had long experience in trying to bring about this disentanglement, and I think we had strong reason to believe that it would never take place. In fact, an al Qaeda plot killed Ahmed Shah Massoud, the strongest Afghan leader opposed to the Taliban, on September 9, 2001: bin Laden struck for the Taliban, and against the United States, in what must then have seemed to him a triumphant series of days.

It is unfortunate that in retrospect we also had strong reason to believe that Pakistan would never sever its connections with the Taliban either. Pakistan's connections with Afghan Islamist forces had been made long before 2001, and rested, it seems, both on religious conviction and realpolitik calculations driven in particular by Pakistan's anxiety about Indian power. It is not surprising that Pakistan's role remains as ambiguous as it does, as this week's report that Pakistani arrests of Taliban leaders early in 2010 were actually meant to block the progress of peace discussions independent of Pakistan's direction reflects. Dexter Filkins, "Pakistanis Tell of Motive in Taliban Leader's Arrest," New York Times (August 22, 2010). Saudi Arabia, too, proves in this book an endlessly troubling ally.

Finally, one overall perspective: in the world of "ghosts," little is as it seems. Governments move in secrecy, from their own people and from each other. What you see is not necessarily what you get, and particularly for members of the general public, understanding the true course of events may never be entirely possible.

Humanitarian Law Project -- the dissent

How much deference, then, does the dissent say should be given to the government's judgments in this high-scrutiny First Amendment context?

On this point, Justice Breyer makes three points. The first is that "here, there is no evidence that Congress has made ... a judgment regarding the specific activities at issue in these cases." (Dissent at 15.) It does appear, in fact, that neither Congress nor the State Department official's affidavit on which the majority relied repeatedly does specifically focus on material support in the form of, for example, training in the use of international dispute resolution mechanisms. Breyer writes that "[t]he most one can say in the Government's favor about these statements [invoked by the Government] is that they might be read as offering highly general support for its argument." (Dissent at 9.)

But perhaps one should defer to such highly general support, on the ground that foreign policy issues are distinctively in the political branches' sphere of expertise and responsibility? Breyer's second point is that while "the Government's expertise in foreign affairs may warrant deference in respect to many matters, e.g., our relations with Turkey, .... it remains for this Court to decide whether the Government has shown that such an interest justifies criminalizing speech activity otherwise protected by the First Amendment." (Dissent at 16.) This statement is somewhat elusive. Perhaps Justice Breyer means that the Government can tell the Court that our relations with Turkey matter, but nothing more. Breyer next says, however, that "the fact that other nations may like us less for granting that protection cannot in and of itself carry the day." (Id.) That observation seems to imply that Breyer concedes also that the Government can tell the Court that particular steps by the U.S., such as criminalizing or not criminalizing certain kinds of speech, will cause other nations to dislike us -- in other words, that the Government not only can define what our foreign policy goals are but also has expertise, entitled to at least some deference, concerning the impact of events and actions on those goals.

If Breyer would go that far, why doesn't he accept the government's argument that here this foreign policy concern trumps the free speech interests at stake, even though heightened scrutiny protects those interests? His third point is, I think, his answer: Breyer sees the government's theory here as so far-reaching that it deeply invades First Amendment values. The court perhaps must accept the government's appraisal of the foreign policy interests, but those interests must be weighed against First Amendment costs, and that weighing is the job of the Court. (Breyer emphasizes this role at 15-16.) Here, Breyer says that it just isn't plausible to treat the kind of speech at issue here as "fungible" with direct support for terrorism in the way that, say, cash donations would be. (Dissent at 8-9). Moreover, he says that the government's argument that speech, even about international dispute resolution processes, will potentially enable terrorist organizations to "legitimate" themselves is dangerously sweeping, for any speech that somehow favored a terrorist organization's cause might legitimate it and so the logic of this argument would sweep far into unmistakably protected speech. (Dissent at 10.)

The majority's response to this is that there is indeed a stopping point -- whether the speech in question was or wasn't "coordinated" with the terrorist organization. (Majority opinion at 26.) Breyer disputes this, arguing that almost any speech will be coordinated in some sense, e.g. in the scheduling of the training class sessions. (Dissent at 14.) But the majority undoubtedly agrees that the degree of damage to First Amendment interests remains a matter for the Court to assess.

Does this mean that Breyer rejects the legitimation argument for restricting speech always and everywhere? Not quite. He writes, at 11, that "[i]n short, the justification, put forward simply in abstract terms and without limitation, must always, or it will never, be sufficient. Given the nature of the plaintiffs' activities, 'always' cannot possibly be the First Amendment's answer." This language is pregnant with a possible exception for less-abstract contentions, further hinted at by Breyer at 16: "Finally, I would reemphasize that neither the Government nor the majority points to any specific facts that show that the speech-related activities before us are fungible in some special way or confer some special legitimacy upon the PKK." One way to take these observations is to say that the ultimate difference between the majority and the dissent lies in how far the two sides are prepared to defer to the government's estimate of the severity of risk: the majority, to a considerable extent; the dissent, much less. But if the government made a stronger showing, Justice Breyer too might accept even the legitimation rationale as a basis for restricting speech.

What would a stronger showing be? One possibility would, certainly, be more specific proof of the connection between speech and legitimation for a particular terrorist organization. It's not easy to imagine compelling proof on these lines, however -- partly because legitimation itself is a rather intangible concept, and partly because gathering proof (public opinion polls? scholarly studies?) is likely to be arduous and slow, when the need for government response is presumably sometimes present and acute.

Perhaps a better interpretation, though not one that jumps out from the words Justice Breyer uses, would be that a specific showing is made when the group in question is one that we are at war against. (I suggested this in an earlier post.) The fact of war does not directly prove the special salience of harm from speech that arguably provides "material support," but it does give special reason to believe that any such harm is a grave danger to the United States. Otherwise, the Courts might find themselves either deferring to predictions of danger generally, or looking for proof of specific danger that is unlikely to be available. In war, perhaps, some special extension of government power is legitimate -- some, but not too much.

Humanitarian Law Project and deference to the political branches in foreign affairs -- the majority's view

So what does Humanitarian Law Project say about the degree of deference to be paid to the political branches in deciding whether the law prohibiting material support to designated foreign terrorist organizations can be applied to speech?

Chief Justice Roberts’ opinion for the Court does not begin by invoking deference. Instead, at pages 24-28, he examines in some details the reasons why, in his judgment, the statute’s view that at least some forms of speech amount to material support is correct. One can disagree with his analysis, but as presented it is indeed his (and the majority’s) analysis. It’s of some importance, I think, that Justice Roberts begins this way.

His next step, however, is to explain why “we do not rely exclusively on our own inferences drawn from the record evidence. We have before us an affidavit stating the Executive Branch’s conclusion on that question,” a conclusion “‘strongly suppor[ting]’ Congress’s findings that all contributions [including nonmonetary contributions] to foreign terrorist organizations further their terrorism…. That evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference.” (28-29)

But it is important to emphasize that Chief Justice Roberts does not assert that complete deference is called for. “It is vital in this context ‘not to substitute … our own evaluation of evidence for a reasonable evaluation by the Legislative Branch,’” he writes, quoting an earlier decision. Deference is owed not to any evaluation, but to reasonable ones. Roberts writes that “[w]e are one with the dissent that the Government’s ‘authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.’” (29) And later he declares that, “At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization – even seemingly benign support – bolsters the terrorist activities of that organization. That judgment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it.” (31) This too is the language of measured rather than complete deference.

What, concretely, does all this mean? For Chief Justice Roberts, an important part of the answer seems to be “that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess. The dissent slights these real constraints in demanding hard proof – with ‘detail,’ ‘specific facts,’ and ‘specific evidence’ – that plaintiffs’ proposed activities will support terrorist attacks.” (29) Here, I think, we are at the crux of the matter: the government’s judgments emphasize potential risks not specifically demonstrated, and the question is what to do about these possibilities.

This is the problem of the one-percent doctrine (though I am not saying that the Supreme Court majority embraced that extreme idea): what should we do when we’re not sure? The one-percent doctrine stated that we would treat essentially every risk as equivalent to certainty. As I’ve written in a previous post, that idea didn’t really make sense even in command decisionmaking. Nor would it make sense in law, where a great deal of effort has gone into trying to fashion standards for decisions about the meaning of uncertain evidence.

Broadly speaking, the First Amendment response to uncertainty has been that when we regulate speech because of its content we must have strong reason to believe that the regulation is called for. The majority here makes clear that it considers the material support statute, as applied to speech, to be a regulation based on content, because not all speech is prohibited, only that speech to terrorist groups “that imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’ (22).

But what if the “speech” in question is actually expressed via conduct – such as the speech involved in burning one’s draft card? A 1960s case about draft-card burning approved a less-demanding standard of review than “pure speech” cases require. Here, the majority rejects the plaintiffs’ argument that the statute regulates “pure political speech” – on the ground that completely pure speech, speech uttered independently of any terrorist organization, is not subject to the statute (20). But even if we think of speech that provides material support to terrorist organizations as “conduct” of a sort, the majority emphasizes that “the conduct triggering coverage under the statute consists of communicating a message.” (23) On that basis, the Court appears to conclude that “‘we must [apply] a more demanding standard” of scrutiny – though the Court never actually specifies what that standard is. Justice Breyer in dissent spends some time on the question of just how demanding a standard should be employed, but ultimately concludes that “I doubt that the statute, as the Government would interpret it, can survive any reasonably applicable First Amendment standard.” (Dissent at 6-7)

We are dealing, then, with a heightened-scrutiny context – in other words, one where the benefit of the doubt must be given to the speaker. It appears that the Supreme Court is unanimous on this score. (A partial qualification: the Court notes an argument by the government that “speech coordinated with foreign terrorist organizations” is like “speech effecting a crime, like the words that constitute a conspiracy.” 22 n.5. This argument could mean that such speech “triggers no First Amendment scrutiny at all.” Justice Breyer, in dissent, emphatically declares that “[n]ot even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.” (Dissent at 5.) The Court doesn’t express any attraction for the Government’s proposition, but also does not reject it on the merits; it declines to “consider any such argument because the Government does not develop it.” Id.)

But how much benefit, of how much doubt? In my next post on this case, I’ll take up the dissent’s answer to this question.