Eugene Volokh's Blog, page 2700
October 3, 2011
Public Legitimacy for Targeted Killing Using Drones
Jack Goldsmith, writing at Lawfare, urges the Obama administration to release a redacted version of the Justice Department's memo concluding that the targeting of Al-Awlaki was lawful — if not a redacted version, then some reasonably complete and authoritative statement of its legal reasoning. I agree. The nature of these operations abroad is that they will almost certainly remain beyond judicial review and, as a consequence, OLC opinions will serve as the practical mechanism of the rule of law.
The best argument against disclosure is that it would reveal classified information or, relatedly, acknowledge a covert action. This concern is often a legitimate bar to publishing secret executive branch legal opinions. But the administration has (in unattributed statements) acknowledged and touted the U.S. role in the al-Aulaqi killing, and even President Obama said that the killing was in part "a tribute to our intelligence community." I understand the reasons the government needs to preserve official deniability for a covert action, but I think that a legal analysis of the U.S. ability to target and kill enemy combatants (including U.S. citizens) outside Afghanistan can be disclosed without revealing means or methods of intelligence-gathering or jeopardizing technical covertness. The public legal explanation need not say anything about the means of fire (e.g. drones or something else), or particular countries, or which agencies of the U.S. government are involved, or the intelligence basis for the attacks. (Whether the administration should release more information about the intelligence supporting al-Aulaqi's operational role is a separate issue that raises separate classified information concerns.) We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi's. So too do the administration's many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.
The public accountability and legitimacy of these vital national security operations is strengthened to the extent that the public is informed and, through the political branches, part of the debate on the law of targeted killing. That cannot be operational discussion, for obvious reasons. But there is still a good deal that could be said about the underlying legal rationales, without compromising security. I myself favor revisions, either as internal executive branch policy or, in a better world, as formal legal revisions to Title 50 (CIA, covert action, etc.) and the oversight and reporting processes. One of those revisions would be to get beyond the not just silly, but in some deeper way, de-legitimizing insistence that these operations cannot be acknowledged even as a program; I would establish a distinct category of "deniable" rather than "covert," and a category of programs that can be acknowledged as existing even without comment on particular operations.
John Bellinger, the former State Department Legal Adviser in the last years of the Bush administration, raises concerns in the Washington Post today about the best way to defend the international legitimacy of these operations. He notes the deep hostility of the international advocacy groups, UN special raporteurs, numbers of foreign governments, and the studied silence of US allies (even as NATO, I'd add, has relied upon drones as an essential element of its Libyan air war).
[T]he U.S. legal position may not satisfy the rest of the world. No other government has said publicly that it agrees with the U.S. policy or legal rationale for drones. European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.
Human rights advocates, on the other hand, while quiet for several years (perhaps to avoid criticizing the new administration), have grown increasingly uncomfortable with drone attacks. Last year, the U.N. rapporteur for summary executions and extrajudicial killings said that drone strikes may violate international humanitarian and human rights law and could constitute war crimes. U.S. human rights groups, which stirred up international opposition to Bush administration counterterrorism policies, have been quick to condemn the Awlaki killing.
Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.
The problem of international legitimacy is always tricky, as Bellinger knows better than anyone. I look at it this way. Tell the international community that we care about legitimacy — which is to say, that we care about their opinion in relation to our practices — and all of sudden we have handed other folks a rhetorical hold-up, to a greater or lesser degree. Unsurprisingly, the price of their good opinion and their desire to exercise control over our actions goes up. This is nothing special to this; it's just standard bargaining theory.
On the other hand, ignore them altogether, and they — particularly, note, our allies, those who say that they are acting roughly within our shared sphere of values discourse, not the Chinese or the Russians — develop a set of norms that they then apply in such a way as to mark us as the outlier and the deviant. Again, this is just drawn from any standard account of norm-negotiation; it's not a statement of nefarious intent; it's an acknowledgment that both we and our allies are invested in norms, and that we are not merely societies of narrow interests. At its worst, developing a quite separate norm regime and then characterizing us as genuinely deviant from it might lead to arrest warrants issued for current or former US officials, and much distrust between sides. It might also lead to places where even our allies might not want to go — putting themselves outside of the US security umbrella in particular matters that turn out to concern them a lot, such has having access to drones in Libya.
If the norm envelope is pushed hard enough, however, then our allies wind up depriving themselves of access to the weapon, which clearly they don't want to do. So they have reasons not to push too hard — both for fear of us simply ignoring them altogether (in effect withdrawing the acceptance that their opinion matters to the legitimacy of the activity) and because they want at least "parts" of it.
The best place to be, then, for both sides, is roughly in the middle that Bellinger stakes out. (Note that nothing I've said here should be attributed to him; these are my views on the negotiation stakes.) Meaning that we have reasons to talk with our allies at length and in detail, in private and public, to try and persuade them to our views, and to persuade them that genuflecting to their advocacy and NGO groups will be worse for them than accepting our space to act, insofar as we can give a plausible interpretation of law. Plausibility is the central touchstone for international law in relations among states, finally; we and they don't have to agree, only to agree that our several interpretations are within the ballpark of acceptability. It might involve alterations of our practice; it might not.
This will never satisfy the non-governmental advocates or the academics, of course. They have no skin in the game and hence can always hold out for the most extreme position with only an indirect cost in credibility. In the case of drones, in which even some of the advocates are belatedly realizing that the weapon is indeed more precise and sparing of civilians, ignoring the NGO advocates as profoundly mistaken has spared a human tragedy in collateral damage over the long run. But the striking thing about the interstate negotiations among allies is that they don't have to reach a conclusion — an agreement — and probably won't. An acceptance of the plausibility of each side's position and an agreement to continue discussion around alternatives that are considered plausible is sufficient.
Private Conversations and the Disclosure of Private Facts Tort
Occasionally, I see assertions that disclosing certain private information about someone — for instance, details of their sex lives, medical history, or financial affairs — would be tortious, even if the disclosure is in a private conversation. (See, for instance, this comment, and this dissent from a Supreme Court opinion.)
But generally speaking, the disclosure of private facts tort does not apply to such private disclosures. (Of course, the disclosure might in some cases be a breach of a professional duty, such as that of a lawyer, a doctor, or a psychotherapist, or a breach of nondisclosure agreement; but those are different matters.) As the Restatement (Second) of Torts § 652D puts it (emphasis added),
The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual.... "Publicity[]" ... means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.
Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.
Illustrations:
1. A, a creditor, writes a letter to the employer of B, his debtor, informing him that B owes the debt and will not pay it. This is not an invasion of B's privacy under this Section.
2. A, a creditor, posts in the window of his shop, where it is read by those passing by on the street, a statement that B owes a debt to him and has not paid it. This is an invasion of B's privacy.
3. A, a motion picture exhibitor, wishing to advertise a picture to be exhibited, writes letters to a thousand men in which he makes unprivileged and objectionable statements concerning the private life of B, an actress. This is an invasion of B's privacy.
In this respect, the disclosure tort differs from defamation law — a false and defamatory statement to one person (even a friend or close family member) might be slanderous or libelous. But if the statement is true but reveals private and non-newsworthy information about a person, it is not a disclosure of private facts unless it "reaches, or is sure to reach, the public."
Naturally, especially in this era of Facebook, that line can be quite mushy; for instance, when would a post on a Facebook page that is readable by 1000 "friends" qualify as something that "reaches, or is sure to reach, the public"? (Illustration 3 — which is based on a real case — doesn't fully dispose of this, partly because it might be influenced by the fact that the letters are about a famous person and are thus especially likely to be further publicized, and partly because the letters were sent to total strangers, rather than just to friends or "friends.") What about a page readable by 100 "friends"? Still, it's clear that certain communications, such as conversations or even e-mails that are unlikely to be broadly forwarded, aren't covered by the tort.
The matter might be different in a few states, if they have a statute or a court decision that departs from the Restatement approach (which itself is based on the decisions of past cases). I know of one such exception: In Rhode Island, a statute defining the disclosure tort requires not "publicity" but "publication," and Rhode Island courts have held that this means communication to one other person suffices to trigger the tort. It's possible, then, that in Rhode Island it might be actionable for one friend (or family member) to tell another true things about a third's love life, medical problems, and the like. But in most states, this would not be so.
None of this is intended to endorse the propriety of the tort, which I have criticized on First Amendment grounds; I only mean to explain what the tort actually covers.
What Should the Supreme Court do with the Obamacare Case?
That's the question posed today over at Scotusblog. It's the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others.
My answer to what the Supreme Court should do is:
The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: "commerce" means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are "health laws of every description." The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are "commerce."
Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally "proper" to force citizens to spend their money on a government-favored Big Insurance oligopoly.
The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); "Health Laws of Every Description": John Marshall's Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not 'commerce': A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexix/Nexis).
Since Scotusblog is trying to get people to comment on its own website, I'm not opening comments on this post, and I encourage you to share you thoughts over at Scotusblug.
The Court's Upcoming Religious Freedom vs. Antidiscrimination Law Case
Wednesday, the Court will be hearing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important religious freedom case.
Federal and state antidiscrimination laws ban discrimination in employment based on race, ethnicity, religion, sex, age, disability, and other characteristics (some of which vary from state to state), such as sexual orientation and marital status. But many religious groups hold beliefs that limit the ministry in certain ways: Catholics exclude women. As I understand it, some streams of Judaism insist that a rabbi be ethnically Jewish, and exclude converts to Judaism. Some groups insist that their ministers be of a particular race. Some might reject gays and lesbians as ministers. Catholics discriminate based on marital status. (Of course, nearly all religious groups also insist that ministers belong to the religion, but there's a special statutory antidiscrimination law exemption that expressly allows religious groups to discriminate based on religion when choosing any employee, minister or not.)
Moreover, even when there are no such official belief-based requirements — for instance, when someone claims he was rejected as an applicant for a job as minister because of race, and the church denies that race was a factor in the decision — a discrimination claim by a minister may require courts to evaluate things that courts shouldn't be evaluating, such as a person's fitness for the ministry. After all, if someone claims he was discriminated against based on (say) race, a standard way of showing such discrimination is that he was treated worse than people of another race who were equally or less qualified. Relatedly, one could argue that the hiring decision can't be plausibly explained by the application of hiring criteria other than race. Yet the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant's explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can't do. "We prayed, and we feel God told us to hire one applicant rather than another" is an argument that's hard for secular courts to reasonably evaluate.
More broadly, a church's decision about who is to speak for it is a foundation for the church's ability to promulgate its teachings the way church members or leaders want to see them promulgated. For all these reasons, courts have generally held that churches have a constitutional right to discriminate based on any criteria they wish — not just religion, but also race, sex, and other criteria — in hiring ministers or employees who have at least some minister-like duties. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).
The main question in Hosanna-Tabor is how far this "ministerial exception" to antidiscrimination law extends to employees who aren't primarily ministers in the sense of people who perform the sacraments or preach sermons. In Hosanna-Tabor itself, the employee was a schoolteacher who taught some religious subjects (but not exclusively religious subjects), and who was herself a member of the clergy, in a job category where clergy members were preferred as teachers (though the church at times hired non-clergy for the task as well). [UPDATE: To quote the petitioner's brief, "Perich taught religion classes four days a week, led students in prayer three times a day, led students in daily devotional exercises, and attended a school-wide chapel service with her students every week."]
I was happy to sign on to an amicus brief in the case that proposed a rather broad definition of the ministerial exception; it's the amicus brief that is chiefly on behalf of the National Council of the Churches of Christ, the Baptist Joint Committee for Religious Liberty, the Queens Federation of Churches, the National Association of Evangelicals, and the Christian Legal Society, drafted by Profs. Rick Garnett, Tom Berg, Carl Esbeck, as well as K. Hollyn Hollman and Melissa Rogers of the Baptist Joint Commitee and Kim Colby of the Christian Legal Society. If you're interested in the case, have a look at the brief, or at the other briefs, collected by SCOTUSblog. (For part of my thinking about why the ministerial exception is sound even after Employment Division v. Smith, see this section of my A Common-Law Model for Religious Exemptions article, though I think one could supplement that with arguments based on the Establishment Clause and the freedom of expressive association.)
International Law Week, October 20–22
Ruth Wedgwood sends this announcement along:
International Law Weekend 2011 — the world-famous gathering of the migrating flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21–22, at Fordham Law School, at 140 West 62nd Street, NYC.
This year's theme is "International Law and National Politics."
A blue ribbon opening panel at 6:30 p.m. on Thursday night at the City Bar will address whether international law has seen "The Death of Sovereignty?" in an era of debt downgrades, seccesionist conflicts, and covert military operations — and will be followed by a free wine and cheese reception.
Panels starting at 9 a.m. on Friday at Fordham will look at International Law and U.S. Grand Strategy, the Extraterritorial Reach of Anti-Bribery Legislation Libel Tourism, the UN Disabilities Convention, Sharia and U.S. Law, Developments in Commercial Arbitration, Access to Justice in the Middle East North Africa Region, Regulation of Private Military and Security Companeis, LGBT Rights in Africa, and the Impact of the European Union's Lisbon Treaty on National Politics. State Department Legal Adviser Harold Koh will give a keynote talk at 1:30 p.m. on Friday, after a free buffet lunch in the atrium, on "International Lawyering for the U.S. in an Age of Smart Power."
Panels starting at 9 a.m. on Saturday include Civilian Casualties in Modern War, Corporate Social Responsibility and Human Rights Law – Emerging Risks for Corporate Counsel, Private Litigation against Alleged Terrorist Sponsors, Intellectual Property Law, the New International Investment Arbitration Lawyer, Current Challenges for the International Criminal Court, Tribunal Procedures and Ethical Dilemmas for the Guantanamo Bay Military Tribunals, and Promoting Independence for Human Rights Lawyers Worldwide. Former Yugoslav Tribunal Prosecutor Richard Goldstone will give a keynote address at 4:15 p.m. on Saturday on "The Future of International Criminal Justice: The Crucial Role of the United States."
As always, admission is free for all students, all faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York. Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free. The registration fee remains a modest $75 for the two days combined for all other practicing lawyers and members of the public.
We have a record number of co-sponsors this year, whose generous contributions makes the event possible. New sponsors include the International Bar Association, and law faculties from as far north as Maine and as far south as Virgina. Further information and registration is available at www.ila-americanbranch.org or www.ilsa.org, or at the door.
NYU Law School Talk on the Tea Party and Popular Constitutionalism
This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so.
I previously wrote about the Tea Party as a popular constitutionalist movement in this article. In my talk, I will explain why the Tea Party qualifies a popular constitutionalist movement despite the fact that that concept has previously been used mostly to describe movements on the political left and assess its main strengths and weaknesses. Like previous popular constitutionalist movements, the Tea Party has not avoided such problems as the impact of widespread political ignorance.
I will also suggest why its impact is likely to be a net positive on balance — including from the standpoint of the mostly left of center advocates of popular constitutionalism, a point I first developed in the article linked above. Given that it was inevitable that the combination of Obama's policies and a deep recession would produce a right-wing populist reaction, it is far better that it has produced a movement primarily focused on limiting federal power and spending than one focused on racial resentment or xenophobia, as was often the case in previous American history and in many European countries today. In addition, the movement's emphasis on limiting federal power could potentially increase democratic accountability in government — a central objective of many advocates of popular constitutionalism.
UPDATE: In this 2010 post, I discussed claims that the Tea Party's real agenda is racism.
Living Beyond 100 Years Will Change Everything
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Thanks to Eugene for inviting me to guest blog this week about my new book 100 Plus: How the Coming Age of Longevity Will Change Everything, From Careers and Relationships to Family and Faith.
As you can see from the chart above, humanity has made great progress in extending average human life span, and much of that progress happened in the last century and a half. But that is only the beginning. New technologies will continue the extension at an even faster rate.
In my book, 100 Plus, I make the argument that, because of advances in regenerative medicine and biotechnology, it won't be long before humans will be able to extend their health spans to over 100 years. Notice that I don't simply use the term "life span" but instead discuss "heath spans." That is because health will be extended along with life.
How will this longevity revolution affect society? That is the subject of the rest of the book. I take the position that a health span of 150 years is achievable and base the rest of the social, economic, and cultural analysis on that horizon.
Biology has now become an engineering project. Just as computer programs have 1s and 0s, so too does the human body have a code, made out of the ACTGs of DNA. Now that the human genome has been sequenced, work continues on figuring out how to reverse engineer the human body.
The field of regenerative medicine is incredibly exciting and one of the most promising techniques so far goes by the name of tissue engineering, which offers the ability to build new organs for those that have worn down, like a heart or a lung. Already, scientists have grown and successfully transplanted human organs, such as bladders and windpipes, for patients in need.
Human hearts and lungs have not been completed yet, but promising work in lab animals suggests it will be possible. How long will it be before patients will be going to the hospital for brand new hearts? It's hard to predict, since science can always run into problems and there will be a number of safety tests. I'm confident it will happen within my lifetime (I'm 39 years old). Once we have a large enough parts list, we will be able to keep humans healthy by replacing parts as they wear down, just like we do with vintage cars that are in tip top shape.
Another important technique for human repair is called gene therapy, which is the process of changing one's genes by adding new DNA or turning off parts of existing DNA. While this field stalled about a decade ago because of the deaths of children who were part of early trials, procedures have become better over time as researchers learn more about how to more safely introduce new DNA into the body. One of the problems with gene therapy is that it can be difficult to insert a new gene exactly where scientists want it to go, since altered viruses are often used as carriers for new genetic information.
The techniques for making changes have now become more precise, producing positive results in both human trials and animal models. One of the most recent successes in this area was announced by Dr. Carl June's team at the Abramson Cancer Center at the University of Pennsylvania. By removing a patient's own T-cells, making some changes using gene therapy, and then introducing them back into the patient's bodies, scientists were able to cure leukemia in two out of three patients. The NYT story on the success is here.
Cancer treatment is not the only area in which there have been some big successes for gene therapy, it has also helped restore sight in blind children and may eventually lead to a cure for AIDS. In lab animals, gene therapy has slowed down aging and allowed the animals to live longer in a younger state. The pathways that the scientists tweaked on these lab animals are similar to ones that humans possess. There are other technologies and ideas for repairing humans, such as the SENS plan, which you will find detailed in my book.
Tomorrow, I will post about how this revolution will affect the economy.
The Passive Voice
Some people categorically criticize the passive voice, a criticism that Prof. Geoffrey Pullum (of Language Log) has long and colorfully condemned; his latest salvo is an excellent post in the Chronicle of Legal Education's Lingua Franca blog on the subject. (For my thoughts on the subject, see here.)
The Dick Durbin Bank Fees
In case you missed it, I had a column in Friday's WSJ, "The Dick Durbin Bank Fees," describing the unintended consequences of price controls on debit card interchange fees.
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