The Faculty Lounge

Does the Criminalization of Tort Inhibit Safety Investigation?

Thank you, Dan, for the kind words and giving me the chance to join you here.  With the recent news that BP has agreed to plead guilty to 14 criminal counts, including manslaughter, and pay to DOJ more than $4 billion to resolve all criminal charges stemming from the 2010 Deepwater Horizon blowout, I have been thinking much about an issue I haven’t thought much about since my days in practice as an aviation litigation attorney, namely the criminalization of what traditionally had been treated as simply tortious.  Excluding, of course, criminal investigations of intentional terrorist activity such as in the wake of Pan Am 103 and activity on 9/11, criminal investigations and prosecutions of transportation accidents were actually few and far between until we saw an uptick beginning in the early to mid-1990s beginning with the crash of Air-Inter flight 148 in Strasbourg, France, ValueJet flight 592 and then the Concorde crash in 2000.  More recently, a criminal investigation has been launched into the April 2012 crash of a 737 outside of Islamabad.  I and many of my former colleagues and former FAA Chief Counsel, Ken Quinn, see here, have grave concerns about the negative impact that criminalization of tortious activity has on the ability of safety agencies both inside and outside the aviation arena to comprehensively investigate the cause of the accident and  improve the safety of the activity that led to the harm (i.e., air safety, oil drilling safety) and prevent future incidents.  In practice, when criminal prosecution became a real possibility we saw the immediate “lawyering up” of key employees with potentially important safety-related information and the resultant non-cooperation or diminished cooperation in the safety investigation for fear of criminal prosecution.  How do we prevent the next Deepwater Horizon blowout if employees won’t talk to the safety investigators? 

Lakhdar Boumediene on His Being Held at Guantanamo

Just in time for the start of the semester, Lakhdar Boumediene, the lead plaintiff in Boumediene v. Bush (2008) has a column in the New York Times about his experience being held at Guantanamo for seven years.  If you teach the case in class, this should be added to your syllabus immediately.

His story is chilling and heart-breaking and will help your students understand the human carnage that Guantanamo has wrought.  As a parent of two young children, I could barely hold back tears reading his story.  As an American who thinks his government should be better than this, much better than this, I felt the same.

Here are the first two paragraphs:

ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

Whitewashed

I've just finished reading John Tehranian's recent book, Whitewashed:  America's Invisible Middle Eastern Minority.  Although known better as an intellectual property and entertainment lawyer, Tehranian has put together a really interesting book about the fate of Americans of middle Eastern descent who are counted as "white" for most purposes as a matter of law, but suffer significant discrimination, particularly since 9/11.  The book is somewhat anecdotal and also contains much in the way of historical and case law analysis.  There is little in the way of empirical work, but, as Tehranian notes, it is hard to do empirical work in this area because it is very difficult to collect accurate statistics.

It's really impressive that Tehranian put this book together while simultaneously producing a book on digital copyright infringement for OUP. 

Anyone interested in critical race theory and the status of Americans of middle Eastern descent (and indeed the difficulties inherent in defining a meaningful concept of "middle Eastern") might find this book a particularly interesting read.

Next Week in Jerusalem

On March 23^rd a bomb exploded on a busy street in Jerusalem, killing one person and injuring over 30 others, including a 19 year old woman from my hometown of Cleveland.  I have thought a lot about this bombing in no small part because on Friday, I will leave for Israel, to speak about health information technology at a conference there.  I have also thought about the unrest in Egypt, Syria, and Jordan, all of which border Israel.  The Middle East is a far less quiet place than it was when I accepted the invitation in November.  Yet, I am still going.  I look forward to seeing friends and relatives, but I also have a notion that having made the commitment to participate, it would be wrong to pull out barring a personal emergency or a “clear and present danger.” 

Has anyone else attended international conferences despite unrest in the region?  Does our participation make any meaningful difference in supporting and encouraging academic endeavors in other parts of the world?  Do we, as academics, have an ethical or professional responsibility to support research and share knowledge outside the U.S.?  I would welcome your thoughts and experiences.

Because I will be busy preparing for my trip, this may well be my last post.  I have very much enjoyed my two months as a guest blogger and appreciate everyone’s valuable comments.

Counter-Terrorism

As part of its Concise Hornbook Series, West has just published Principles of Counter-Terrorism Law, co-authored by my South Texas colleague, Geoff Corn, and Notre Dame law professor Jimmy Gurule.  Here's a description:

The book examines the military and law enforcement responses to international terrorism. Subjects include the legal authority to use military force; determining when the law of armed conflict comes into force; the law of targeting and how this authority is applied to terrorist operatives; preventive detention; prosecution of terrorists by military commission; the legal framework for gathering counter-terrorism intelligence information; prosecuting terrorists and their sponsors; freezing terrorist assets; and civil liability for personal injury or death caused by acts of international terrorism.

With a copyright date of 2011, this has to be one of the first arrivals of the New Year.   Congrats to both parents co-authors!

Culture Clashes: Books and Movies

Over the last week, I've enjoyed (for want of a more appropriate word) a book and a movie both of which have somewhat similar themes although each is very different.  The book (with thanks to Steven Lubet for recommending it) was Chloe Hooper's The Tall Man which dealt with the first criminal prosecution in Australia of a policeman for an aboriginal death in custody.  It's hard to believe that such a prosecution didn't occur until a few years ago.  And the detail with which the author investigates the Queensland police culture and the aboriginal indigenous culture is really quite impressive.  She obviously had more access to the Palm Island inhabitants and their legal representatives, but she did her best with what she had with respect to other groups involved in the story including police groups and politicians.  She raises lots of inter-racial issues for which there are no easy answers, but the book certainly makes you think. 

I also watched a movie from 2007 which I hadn't heard of before - actually, I think it might have been a Netflix recommendation.  It's called The Visitor and it stars  Richard Jenkins.  The film deals with an unlikely friendship that develops between a dispirited old college professor and a young couple of illegal immigrants who end up living in his New York apartment.  It deals with themes of racial differences, particularly between Arabs and Americans post-9/11 in the immigration context.  It also deals to a small extent with the relationship between the boyfriend and girlfriend in the illegal couple as the woman is from Senegal and the man is from Syria.  The writing, directing and acting are very subtle and understated, but it is still an engaging film that makes you think about immigration, cultural differences, and to some extent what our goals are/should be both personally and on a larger scale.  I really wasn't expecting to enjoy the movie so much, but I would recommend it - again, hardly light holiday viewing, but maybe sometime in the new year...

Wikileaks: Beware The Blacklist

 

As a follow-up to Dan's earlier post on the hysterical response to Wikileaks, check out why grad schools (including one law school) are warning students not to access docs posted on the site.

 

 

Professional Responsibility and Compliance Theory in National Security Cases PART 2 of 2

In a post a few days ago I introduced Keith Petty's article Professional Responsibility Compliance and National Security Attorneys.  I'm going to wrap up my comments on that article in this post. 

As I mentioned in my prior post, Petty makes clear early on that his article is not an attempt to determine whether or not the authors of the torture memos should be subject to professional sanctions or criminal liability.  Instead, Petty attempts to prescribe an approach to government legal ethics that would have prevented the flawed reasoning of the memos and tries to outline an even more ambitious goal: provide guidance for future attorneys practicing in the tense times of national crisis.  

Some of our readers may notice that the ethical legal process Petty advances is based in large part on a framework first proposed by Harold Koh, which analyzed government compliance with international legal obligations, known as the “transnational legal process.”  (Harold Hongju Koh, Why Do Nations Obey International Law?)  As applied to the laws of the profession, the ethical legal process consists of three stages—interaction, interpretation, and internalization—and adopts the competing theoretical models described in my prior post. 

During the interaction phase, the attorney is confronted by an agency head, combatant commander, or the President with a situation of national import requiring quick, decisive action. The trust of the policy-maker enables the legal advisor to become engaged at the onset of the process.  Requests for legal advice after a decision has been made leaves the government attorney with the unenviable task of crafting legal arguments to support what may be bad policy, which in turn creates morally ambiguous advocacy positions.  As such, the lawyer must insert himself into the process early on so she can give legal advice rather than support flawed policy as a latecomer. 

I'm curious about Petty's interaction phase, particularly his reform recommendation.  Petty believes that by inserting the lawyer into the process at an earlier point they are less likely to be captured by the wishes of their superior.  I'm not so sure.  Think of the prosecutor who, while supervising an FBI agent may come to sympathize with that investigator's travails.  The attorney in the policy making context may also become so embedded in the development of a policy that they become wedded to it.  Perhaps having the attorney involved at an early stage is beneficial, but I think there still needs to be a second set of objective eyes brought in at a later point in time.  I'm pretty sure Neal Katyal made this point in this article.

Second, Petty describes "the interpretive or discursive phase" of norm articulation.  Ethical application of the law depends on the interpreted legal norm at issue and the professional responsibility that accompanies the manner of its implementation.  As demonstrated by the fall out surrounding the issuance of the OLC memos, excluding other relevant advisors and issuing opinions that seek to unilaterally reshape constitutional and international legal obligations diminishes the independent, candid nature of the advice given.  The effectiveness of the interpretive phase, therefore, depends upon clarifying ambiguous obligations, inter-agency communication, and openly vetting policy-decisions that may be contrary to the law. 

This point, of open discussion and vetting is one I made in this article.  There, I critiqued the process the Bush administration followed when it created the military commissions.  Specifically I noted that the institutional designers who created the commissions followed an insular process that was resistant to normative pressures that would have urged conformity with the requirements of Common Article 3 of the Geneva Conventions (the position ultimately adopted by the Supreme Court in Hamdan).  Interestingly, Petty takes this point and applies it to the context of ethical compliance, arguing that a recursive process of clarification, vetting, and deconstruction of legal opinions can result in better outcomes.  I agree with the broader point, although I wonder how in a time sensitive context this can be achieved.  That's more of a managerial or organizational point than a normative-legal analytic one, but I think it's important to consider.  Stated differently, how can the "interpretive or discursive phase" be operationalized?  It's a question of going from law as theorized to law as practiced. 

Finally, Petty notes that consistent ethical compliance can be fully realized only after the individual has adopted the norm at issue as part of his or her internal value set.  This is referred to as internalization, the final stage of the ethical legal process.  Organizational factors play a large role in enhancing the ethical compliance of its members.  OLC, for example, has a long tradition of integrity and ethically minded practice, which many argue was derailed in the first years of the “war on terror.”  In order to reassert its ethical tradition, OLC might implement a variety of organizational measures, including whistleblower protections, assigning attorneys a “gatekeeper” function, and PR norm articulation through internal regulations and guiding principles.  Petty argues that if these practices were in place in 2002-2003, and had the leadership fostered an environment of ethical compliance, then the problematic reasoning of the torture memos may have been avoided. 

Petty ends by noting that times of crisis inherently generate negative influences on legal advisors’ ethics.  Too often the discourse that shapes the application of the national legal authority results in zero sum compromise, either due to policy differences or political motives.  Legal advice charged in these terms will neither advance security objectives nor the rule of law.  It is at this point, Petty concludes, that the ethical legal process is crucial to providing an honest appraisal of the awesome power of the executive authority in national security decisions, deterring misuse in the process.  By enhancing compliance with professional responsibility obligations; this process, he argues, will reinforce the rule of law and ultimately contribute to national security.  I'm not certain that I agree with all of Petty's reform recommendations, and perhaps I'm cynical, but I'm not sure that what he proposes can be operationalized.  Nevertheless, as I alluded to in my first post, this is the type of legal scholarship we need more of in the national security law subfield. 

Professional Responsibility and Compliance Theory in National Security Cases PART 1 of 2

One of the interesting things about working in the field of national security law is the trans-substantive nature of the topic.  Scholars writing in the field can approach issues from almost any perspective, ranging from constitutional law, separation of powers and federal courts to immigration law, criminal law, and international law.   Despite many discussions at panels and in the blogosphere dealing with torture and the memos authored by Professor Yoo and Judge Bybee, I still think that a particularly interesting, and perhaps under theorized area of national security law is its intersection with the rules of professional responsibility and the ethical obligations of attorneys.  That's why I was very excited to read Keith Petty's article Professional Responsibility Compliance and National Security Attorneys: Adopting the Normative Framework of Ethical Legal Process.  I know Keith from some advisory work I did a few years ago, and also from workshops and symposia, and I've always appreciated his insights into matters of national security from both a theory and practice perspective.

Petty applies a behavioral studies approach to the ethics of national security legal advice.  Arguing that the traditional models of PR norm identification are flawed as they relate to government attorneys, he proposes the adoption of a three-step approach—the ethical legal process—that incorporates compliance theory and serves as a guide to lawyers practicing in times of crisis.  Petty goes out of his way to avoid taking a position on whether the authors of what he calls "the torture memos" should be subject to professional sanctions or criminal liability.  At first I thought that was a dodge, but as most of us know the issue has been rehashed in numerous articles and essays, so if it was a dodge it was a necessary one.  By stepping past the issue, Petty seems to be attempting to prescribe an approach to government legal ethics that would have prevented the flawed reasoning of these memos and offers what he theorizes will serve as a guide to future attorneys practicing in the tense times of national crisis.  Some commenters will no doubt have a problem with that approach, but I think it's refreshing.  Accountability for alleged misconduct is a line of reasoning and argument that we've frequently debated within and outside the national security law field, it certainly gets the comment section of blogs and the audience at AALS panels fired up.  Unfortunately, we've spent a lot less time discussing how to implement institutional and professional checks that prevent the flawed reasoning in the first place.  Is accountability part of that calculus?   Sure.  But it's not the whole calculus, and I think even the most passionate advocate for accountability would concede that the best possible result is avoiding potentially flawed advice that results in abuse in the first place.  That's Petty's focus, and it drew me in, I hope commenters will agree. 

In this post I'm going to set up how I read Petty's framing of the issue.  In a follow on post I'll evaluate his ethical process argument. 

A Failure of Traditional Approaches?

Petty begins by describing the traditional approaches taken to government attorneys’ PR obligations, and describes why they are inadequate to ensure ethical compliance.  Given the paucity of guidance regarding the ethical norms of government legal advisers, Petty believes that scholars have taken two different approaches; a client-identification approach and an attorney centered approach. 

There are two general schools of thought under the client-identification approach.  The first cites the agency/agency head as the client, relying on a private practice model of attorney-client relationships.  Supporters of this approach argue that it is an issue of democratic accountability.  Elected officials, and the appointees he/she designates, are voted into office in part because of their legal philosophy.  The other school Petty describes is one that views the government as a whole, or the public interest, as the client.  He believes that these scholars reject the agency approach, unless the views of the government agency coincide with the public interest.  Petty argues that a strict agency-as-client approach is not appropriate in government service, because unlike the litigator or a private attorney there is no adversary or neutral judge to rebut the government advisor's position.  Zealous advocacy of the policy-maker’s decision can have harmful political and legal consequences (see e.g., torture memos).  Conversely, the public interest model is, in his words, subjective, abstract, and has little to do with achieving compliance with ethical norms.  After all, what is precisely in the public interest?  Is it the public that asks for more forward-leaning approaches to combating terror, or is it the public interest that simultaneously criticizes the CIA for implementing aggressive counter-terror operations?  

Focusing on the specific role of the national security attorney is another approach taken to define applicable ethical obligations ----attorneys can fall into the role of adviser, advocate, counselor, or even judge.  But these arguments fail for many of the same reasons as the client-centered approach.  Citing Goldsmith, Petty notes that “Legal advice to the President from the Department of Justice is neither like advice from a private attorney nor like a politically neutral ruling from a court.  It is something inevitably, and uncomfortably, in between.”

Petty doesn't disregard the moral and ethical considerations underlying these traditional models, but instead thinks that none adequately circumscribe the attorneys role in such a way as to ensure ethical compliance.  Petty contends that the first step toward compliance requires recognition that in various crisis situations the role of the attorney may change and the identity of the client may shift.  That these approaches, standing alone, fail to account for external factors that influence the behavior of national security attorneys is reason, in Petty's mind, to fundamentally reexamine our approach to the ethics of government legal advisors.  

Compliance Theory and Behavioral Influences
   
Turning to the behavioral, Petty attempts to identify the norms governing legal advisors by exploring a concept known as "compliance theory."  This theory has apparently been used in the past to analyze whether individuals have a duty to obey the law, how to enforce government regulatory schemes in the private sector, and whether government officials are faithfully executing the laws. 

Petty outlines four theories of behavioral compliance: coincidence (ie. There is no causal relationship between norms and obedience), identification/conformity (ie. People loosely conform conduct to rules, but not because they feel a legal or moral obligation to do so), compliance (ie. Actors follow rules in order to gain rewards or to avoid punishment), and obedience/internalization (ie. Actors are in true compliance when they incorporate a rule as part of their internal value set).  The higher standard of ethics often attributed to government attorneys, and seen in the “public interest” approach discussed above, is consistent with the value-oriented approach of internalization.  As such, the ethical legal process includes internalization as a requisite step to predictable, habitual compliance.  The organizational theorist in me immediately noticed the touchpoint between these factors and the literature in organizational behavior (more on that in the next post)  As my summary suggests, Petty sets up these theories of behavioral compliance in a hierarchy form from almost meaningless happenstance (coincidence) to value laden (obedience/internalization).

He then outlines the negative influences on ethical behavior generally, and applies them to national security practitioners.  I thought this was a particularly helpful taxonomy of the organizational influences operating on national security attorneys:

Approval Seeking and Personal Interest:  Petty argues that among the primary forces drawing one away from ethical compliance in government service is the desire to please the decision-maker and seek professional gain.  Reports confirm that OLC sought to push the envelope when the torture memos were written, and in doing so allowed political considerations to override ethical obligations.   

Political and Ideological Allegiances:  Model Rule 2.1 permits lawyers to consult the law and “other considerations such as moral, economic, social, and political factors….”  Still, the commitment of Bush Administration attorneys to the expansion of executive authority seems in Petty's mind to rival that of prior crisis Presidents.  The point at which political motivations overtake considerations of lawfulness and applicable ethical norms is where ideological allegiances negatively impact compliance.

Nature of the Crisis and Time Sensitivity:  According to Petty, the national security issue at hand determines the extent to which policy-makers base their decisions on a formal legal analysis.  The unprecedented nature of the 9/11 terrorist attacks, coupled with intelligence reports of additional threats, generated fear among policy-makers that another devastating attack was inevitable and possibly imminent.  This climate of fear contributed to apparent transgressions from the norms of the profession when the torture memos were drafted. 

NEXT POST: Above I've summarized Petty's explanatory "set-up" which focuses on the failure of the traditional approaches, theories of behavioral compliance, and the negative influences on ethical behavior.  For space and time considerations I'm going to split this post into two parts.  In my next post I will unpack Petty's ethical legal process argument, critiquing and evaluating some of its central claims.  I'm no expert in PR, I've just begun to dabble into the field and am teaching it for the first time this semester, so I'll be interested in reading the comments section for what our experts out there think of Petty's piece. 

POST 2 OF 2 IS HERE

More on the FISA Rules of Procedure (Part 3)

Ellen Nakashima and Spencer S. Hsu have an article in The Washington Post on the new FISA rules of procedure which I wrote about here and here.  Their take: 

...the FISC has drafted a revision to its rules of procedure to clarify, among other things, who has standing to challenge surveillance orders, and to give judges more discretion in disclosing rulings. While it's not a giant leap for civil liberties and transparency, privacy advocates and some industry lawyers say it's a step in the right direction.

* * * *

The court rarely releases opinions, but when it chooses to do so, existing rules require it to submit the opinion to the executive branch first for redaction. Under the new rules, the court "may" seek executive branch review.

Giving the court more discretion "is a good thing," said Melissa Goodman, staff attorney for the American Civil Liberties Union, which has sued unsuccessfully to participate in FISA court proceedings. But "it would be even better if the FISA court went further and said there would be a presumption in favor of disclosure of important and significant legal rulings."

Unfortunately that's where the article ends.  The ACLU says it's a "good thing" and even argues that it would be better if rulings were presumptively disclosed, end of story.  I disagree with the ACLU's prescription, but I understand their reasoning and motives.  What I don't understand is why the Post's authors didn't seek counterarguments?  They fail to quote anyone who thinks that increasing the court's discretion to disclose information without consulting with the Executive branch is potentially harmful to national security.  That's a viewpoint expressed in my prior posts and one that countless former government officials would echo.  From the perspective of institutional competence (e.g. familiarity with the entire intelligence picture) and democratic accountability, there are very good reasons to make disclosure decisions a collaborative effort, not one purely at the discretion of the FISC.  That might mean tweaking the rules to strike the right balance, but doing so is preferable to how the rules are currently drafted.  The Washington Post should have quoted both sides in this important debate, failing to do so is a disservice to their readers. 

First Living Medal of Honor Recipient from Afghanistan or Iraq

 
On the eve of September 11th, Stars and Stripes reports that President Obama met last night with Staff Sergeant Salvatore Giunta to inform him that he will be the first living U.S. service member from either Iraq or Afghanistan to receive the Medal of Honor.

The Washington Post, covering the story explains: "Six posthumous Medals of Honor have been awarded for heroism in the Iraq and Afghan wars. The honorees exposed themselves to enemy fire to call for reinforcements or pull wounded colleagues to safety. Three of the six jumped on grenades, sacrificing their lives to save their fellow troops."  The New York Times notes that "In contrast, 464 Medals of Honor were awarded during World War II, 133 during the Korean conflict and 246 during the war in Vietnam, according to Pentagon records. An analysis by the Army Times last year said that there were, on average, two or three Medal of Honor recipients for every 100,000 service personnel in previous wars — but only one in one million for the conflicts in Iraq and Afghanistan."  Giunta will be the first living Medal of Honor recipient since the Vietnam war. 

From the New York Times coverage of the story:

In the most dangerous valley of the most rugged corner of eastern Afghanistan, a small rifle team of airborne soldiers fell into a vicious insurgent ambush, a coordinated attack from three sides.

A young Army specialist, Salvatore A. Giunta, took a bullet to the chest, but was saved by the heavy plates of his body armor. Shaking off the punch from the insurgent round, he jumped up and pulled two wounded soldiers to safety before grabbing hand grenades and running up the trail to where his squad mates had been on foot patrol.

There, he saw a chilling image: Two insurgents hauling one of his American comrades into the forest. Specialist Giunta hurled his grenades and emptied the clip in his automatic rifle, forcing the insurgents to drop the wounded soldier. Still taking fire, he provided cover and comfort to his badly wounded teammate until help arrived.

True stories of combat defy retelling, and he leaves the recounting of the details of that mission on Oct. 25, 2007, to others. “It was one of the worst days of my life, and when I revisit it, it kind of guts me a little bit more every time,” he said on Friday.

But the White House wants to honor his heroism, and announced that for his valor during that mission, Salvatore Giunta of Hiawatha, Iowa, who is now 25 and a staff sergeant, will become the first living service member to receive the Medal of Honor, the military’s most prestigious award, for action during the wars since September 11, 2001.

Thank you for your service Salvatore Giunta! 

Fried & Fried on Torture

A father-son team, Charles Fried (Harvard Law School) and Gregory Fried (Chair of the Philosophy Department at Suffolk) parlayed years of family conversation into a new book:  Because It's Wrong: Torture, Privacy and Presidential Power in the Age of Terror.  Last Tuesday evening, they and Alan Dershowitz (as agent provocateur) played to a packed house at the Brattle Theater in Cambridge, sponsored by the Harvard Book Store.   I have mentioned before that this is one of the great benefits of having any academic job (or, for that matter, any job at all) in Boston-Cambridge.  Last spring, I listened to Rebecca Newberger Goldstein do a reading from 36 Arguments for the Existence of God: A Work of Fiction at the book store, and then a tag team presentation at Harvard-Hillel with her and her husband, Steven Pinker.

I think I can fairly summarize the Fried/Fried versus Dershowitz debate.  The Frieds contend if there is any absolute moral imperative, it is the one that forbids torture.  And no law can legitimate it.  Nor can any circumstance, even the ticking bomb about which the captured terrorist knows and will not reveal unless he is tortured (accepting for the sake of the argument that torture is efficacious.)  On the other hand, they believe that Presidents may violate the law in the national interest so long as they promptly seek ratification by Congress.  Hence, they believe that the FISA violations shortly after 9/11 were justifiable, even if they thought the Bush Administration wrongly dallied in seeking and getting Congressional ratification.

Dershowitz (surprise!) disagreed, contending, first, that he did not agree there were moral absolutes and, second, that, even if there were such absolutes, he was not prepared to say that torture, as opposed to other acts of cruelty, qualified.  While he abhors torture, he is not prepared to say that it should never be used, and has proposed that torture only be permitted after a judge has issued a "torture warrant." 

This isn't my area, but I find both positions overstated.  The Fried/Fried position is Kant-influenced - that we can reason our way to categorical imperatives like "torture is always wrong."  Kant thought reason was merely "regulative" in terms of knowledge of the physical world (the "is"); it is the process by which we understand and explain the world around us.  But the fruits of reason's process as to the "is" are not knowledge unless confirmed by experience.  As to the "ought" of morality, however, Kant thought that the fruits of reason could be constitutive and not merely regulative.  When deciding whether we might torture, we should act on that principle we would have as a universal law of nature.  I've come to think that there is something fundamentally true about the CI as a process, but only a God is capable of unraveling the hardest cases.  Hence, I shrink from human formulations of instantiations of the Categorical Imperative.   In fact, as Jeremy Waldron has written, Kant himself seemed to be a legal positivist because he himself knew that human beings would never agree on those specific instantiations!  So I wasn't persuaded by the philosophical argument this was an instance in which law could NEVER validate a moral abomination.

Nor was I much impressed with the Dershowitz position.  His idea is that torture be contained within or by the rule of law, rather than existing outside it.  That struck me as odd, or at least jurisprudentially controversial on the "what is law" question, since the Nazis managed to have the equivalent of genocide warrants under the Nuremberg Laws.  Indeed, the position seemed to be question-begging.  What would the substantive arguments for a torture warrant be?  Would a judge be entitled to hold the Fried/Fried view, or would the fact that a torture warrant existed in concept mean that judges were required to be consequentialists rather than deontologists?  In other words, I wasn't persuaded by the argument that throwing an issue before a judge, and calling it thus "the rule of law," could somehow validate a moral abomination.

Obviously, these are terribly difficult moral and philosophical questions, and invoke debates and contending positions that have been around for thousands of years.  I thought about Larry Solum's much-downloaded paper, Virtue Jurisprudence:  A Virtue-Centered Theory of Judging, and concluded that perhaps the middle ground was indeed the concept of a torture warrant, but only if we could be assured, pace Solum, that all judges were truly virtuous.

More on the FISC Rules of Procedure

In a prior post I discussed a change to the Foreign Intelligence Surveillance Court's Rules of Procedure.  Marc Ambinder, writing at The Atlantic and Steven Aftergood at Secrecy News both posted responses (thanks to both for the comments and traffic).  Ambinder tied my post to recent developments in the Ninth Circuit, noting:

"Just yesterday, the 9th circuit court of appeals preserved the executive branch's ability to assert the State Secrets Privilege in cases where national security could be jeopardized by even the discovery phase of a trial. The only consideration that mattered to the court is whether the information's release could actually damage national security... But the FISC, which regularly deals with highly classified information involving sources and methods, now wants to positively assert that it has the authority, in determining when and whether to release information about cases, to order the executive branch to figure out the appropriate redactions. Before, the executive branch could redact whatever it wanted. Now, the court wants to decide whether the executive branch can redact whatever it wants." 

Aftergood, on the other hand thinks both Ambinder and I misunderstand the Court's change in language, and he even goes so far as to say that my reading is "hasty and likely erroneous."  I won't go that far in critiquing Aftergood's reading, rather I think the fact that we disagree about this highlights the problem with the rule and the need for clarity (a point echoed by Robert Chesney here).  

To the substance.  Aftergood first argues that a change in wording from "Opinions (which 'must' be reviewed)" to "an 'order, opinion, or other decision' (which 'may, as appropriate' be subject to review)" somehow doesn't mean exactly what it says.  His argument is premised on the fact that the mandatory "must" language was changed to the discretionary "may" language for not only "opinions" but also "orders" and "other decisions."  On it's face this change in language modifies both the discretionary nature of the review and the scope of the review.  Basic canons of statutory construction reinforce this point, as the Supreme Court has said:

"...in interpreting a statute a court should always turn first to one cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last, judicial inquiry is complete.’” (Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). 

There's not much less unambiguous than the distinction between may and must.  Granted, it's not the legislature we're dealing with here, but the same rule of construction should apply.  Even more on point, specifically with regard to the word "may" in a review process, the Second Circuit has held that “The use of a permissive verb — ‘may review’ instead of ‘shall review’ — suggests a discretionary rather than mandatory review process.” (Rastelli v. Warden, Metro. Correctional Center, 782 F.2d 17, 23 (2d Cir. 1986).) 

Now, I admit that the change in language may result in an absurd reading when applied to scheduling orders and other minutiae, but it's discretionary as to both, so the absurdity argument doesn't apply.  What's absurd (in the ordinary sense of the term) is that Executive Branch review is also discretionary as applied to opinions, which are my central concern (although I imagine some orders may also have information which the Executive Branch may want an opportunity to review before publication).  I'll concede Aftergood's best point, which is that the Executive Branch doesn't need to review scheduling orders.  That still doesn't change the fact that the plain text of the proposed rule shifts a mandatory review by politically accountable officials to a discretionary review by unaccountable officials.  A judge who was inclined to favor disclosure and transparency over secrecy may read the rule in the exact way that I'm reading it.  Unclear rules lead to uncertain results, and when dealing with matters of national security I see this rule change as an unnecessary risk.  Once information is released there is no way to pull it back, and that's why I favor keeping the rule mandatory.  Contra Aftergood's suggestion, my concern is not "scheduling matters" and "page limits" rather my concern is (as I stated in my prior post) to ensure that every opportunity to catch a mistake is undertaken.  That may not favor the end of immediate transparency (a sometimes laudable goal which Aftergood has advocated for), but it does favor national security.

Let me end on this point.  If reasonable people like Aftergood, Ambinder, and I can disagree on the meaning of this rule change, I imagine reasonable judges and Executive Branch officials could also disagree.  That is why the rule should be clarified.  Rather than arguing over the meaning of "may" and "must" the FISC could make the following changes:

For opinions, maintain the existing language "Before publication, the Opinion must be reviewed by the Executive Branch..." 

For orders and other decisions the Court should place a 72 hour (or some other reasonable period of time) embargo on publication, with automatic publication at the end of the period unless the Executive Branch makes a request to the contrary. 

This proposal clarifies the meaning of the rule and strikes an appropriate balance between national security and transparency. 

PRIOR RELATED POST:  New FISC Rules of Procedure

New FISC Rules of Procedure

THIS POST HAS AN UPDATE HERE

The Foreign Intelligence Surveillance Court (FISC) proposes to change its Rules of Procedure.  The proposed Rules and a call for comments are published here.  The Rule change is largely an outgrowth of the 2008 FISA Amendments Act.

At first blush it looks like there's not a lot to see here.  The Rules are a mere 16 pages long, modifying the 7 page rules which were last amended in 2006.  The FAS Project on Government Secrecy has a helpful summary of the changes.  They note that the Rules provide new procedures for telecommunication companies to petition for modification of dismissal of requests for assistance with surveillance.  The new Rules also set forth new procedures for the government to compel cooperation by a non-compliant telecommunications provider. 

There is also a slight wording change to Rule 5 now Rule 62 which I believe will have a big impact.  Previously, Rule 5 required that the FISC send all opinions to the Executive branch for redaction of classified information, specifically Rule 5(c) stated:

"On request by a Judge, the Presiding Judge, after consulting with other Judges of the Court, may direct that an Opinion be published.  Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor)."

Under proposed Rule 62, the Executive Branch review requirement is now optional:

"The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published.  Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published.  Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that classified information is appropriately protected pursuant to Executive Order 13526 (or its successor)."  

The DOJ National Security Division and the intelligence community should oppose this modification and request that Rule 62's language stating that "the Court may, as appropriate, direct the Executive Branch..." be amended to read "the Court must afford the Executive Branch the opportunity to review..."  As currently structured Rule 62 allows a Judge in his/her own discretion to request publication of an order without consulting with the Executive Branch.  As a matter of practice, it is unlikely that the Presiding Judge would disregard the potential risks to national security inherent in publishing FISC proceedings, and the government as a party to the litigation will likely register its request for an opportunity to redact any publication.  However, this all rests on the assumption that everyone does their job properly and as with all things in life, mistakes can occur, therefore the Rule should presumptively provide an opportunity for the Executive Branch to weigh in and redact the order or opinion before publication.  This is especially the case because judges receive only snippets of the overall intelligence picture, and are not privy to other information that may not have been relevant to the particular case before the FISC, but may be very relevant to any publication decision.  (See e.g. Ctr. for Nat’l Sec. Studies, 331 F.3d at 928 noting that “the judiciary is in an extremely poor position to second-guess the executive’s judgment in this area of national security" and N. Jersey Media Group Inc. v. Ashcroft, 308 F. 3d 198, 219 (3rd Cir. 2002) stating "[G]iven judges' relative lack of expertise regarding national security and their inability to see the mosaic, we should not entrust to them the decision whether an isolated fact is sensitive enough to warrant closure.")  I would soften that language a bit and merely say we should not entrust to them alone, the decision whether an isolated fact is sensitive.  This is not a new concept, in fact it dates back to the founding era when George Washington noted that “Every minutiae should have a place in our collection, for things of a seemingly trifling nature when conjoined with others of a more serious cast may lead to very valuable conclusions.” (Letter from George Washington to Lord Stirling (Oct. 6, 1778). 

Beyond the competence issue, there is an accountability issue.  The authority for decisions regarding the release of classified information rests with the political branches who are accountable to the people when mistakes are made.  If a Court wrongfully releases information that causes harm, the people will hold their political leaders responsible, not the Court who with life tenure is unaccountable.  As such, the Executive Branch should be forced to weigh in on publication decisions, and the Rule should mandate such reflection. 

 

What Took Them So Long? Motive's Easy!

It's shameful that CNN took more than two years to figure out the motives for these murderous shootings by U.S. soldiers when that sort of inquiry into motive really shouldn't take more than a few hours.

More on Kristallnacht and David Brooks

My post about Kristallnacht and David Brooks's NYT column has drawn some critical reaction from Steven Lubet (in the comments to the post) and from co-blogger Calvin Massey.  Steven asks "precisely what [I was] suggesting by cautioning Brooks about Kristallnacht," if I was not "criticizing Brooks for encouraging violence against minorities."  Calvin argues that "[t]o remind the nation of some obvious facts [about Nasan's apparent motives] is not to endorse the Holocaust."

In response to Calvin:  Kristallnacht was not "the Holocaust."  Kristallnacht was a night of violence against an unpopular group widely thought to be an internal enemy of the German state.  To the extent that the pogrom was part of a larger government plan at that point in the Reich's developing Jewish policy, the plan was to terrorize Jews into leaving Germany and forfeiting their property, not to commit mass genocide.  

This distinction matters in the context of David Brooks's piece, because Brooks faults us as a nation for indulging a "paternalistic" assumption that if we had been quick to label Nasan a jihadi, "the great mass of unwashed yahoos in Middle America would go off on a racist rampage."  The Kristallnacht pogrom was, in a basic way, just that:  a great mass of unwashed yahoos in Germany go[ing] off on a racist rampage.  To point out a parallel between the "racist rampage" that Brooks hypothesizes and the Kristallnacht pogrom is not to equate anything with "the Holocaust."

In reply to Steven:  David Brooks himself acknowledges the very point I am trying to make:  "It’s important to tamp down vengeful hatreds in moments of passion," he says.  But then he undercuts the point, saying that to move away from rather than toward calling Nasan a jihadi is "patronizing" and not "the reaction of a politically or morally serious nation."  

This is precisely the point I dispute with my reminder about Kristallnacht.  Brooks calls a very important question:  how does a "politically and morally serious nation" deal with its anxieties about an internal enemy at moments of provocation?  Brooks says that the will to indulge less-threatening explanations is "well-intentioned" but a "flight from reality," a denial of "the possibility of evil" in our midst that does not befit a serious nation.  That is where I disagree with Brooks.

In my view, a serious and mature nation treats a narrative casting racial and religious minorities as internal enemies with great caution.  (This is especially true where the serious and mature nation in question has its own painful history of over-indulging such narratives.)  Nearly forty percent of Americans believe Islam is more violent than other faiths.  Among conservative Republicans, 55% hold that view.  According to a Newsweek poll in 2007,  one in four Americans say they would support mass detentions of American Muslims in the event of another terrorist attack in the United States.  Nearly half say they would not vote for a Muslim candidate.  Over half support the wiretapping of mosques.

Brooks appears to be of two minds on the question:  he acknowledges that tamping down rather than building up vengeful hatreds at moments of provocation is "important," but he goes on to say that it's also "unserious."

I would have stopped with "important." 

On the 71st Anniversary of Kristallnacht

Seventy-one years ago today, my grandfather Felix Müller was dragged from his home in Frankfurt to the Buchenwald concentration camp.  His brother, my great-uncle Leopold, was arrested at his home in Bad Kissingen and locked up in the local jail.  It was "Kristallnacht," the night of mass action against German Jews ostensibly to punish them for a Jew's having shot and killed a German consular official in Paris.

A few years ago, I found my great-uncle's Gestapo file in an archive in Würzburg, Germany.  It included this record of his November 10 arrest.

We tend to remember Kristallnacht as a moment in the larger episode we call "the Holocaust," and therefore can't help but see it as one step in a larger genocidal plan.  But that's not what it was at the time.  At the time, it was an act of reprisal against an internal enemy for that group's supposed collective responsibility for one individual's murder of a government officer.

It's worth noting that in today's New York Times, David Brooks takes the country to task for our "patronizing" speculation in recent days that Fort Hood shooter Nidal Malik Hasan might be something other than the evil jihadi Brooks understands him to be.  Says Brooks:  "If public commentary wasn’t carefully policed, the assumption seemed to be, then the great mass of unwashed yahoos in Middle America would go off on a racist rampage."  This rush from (rather than to) judgment "wasn’t the reaction of a morally or politically serious nation," he argues.

On this seventy-first anniversary of the Kristallnacht pogroms, I beg to disagree. 

"Blame it on the Muslims . . . no, wait, it's the Jews." Actually, the problem is the prosecutor.

Remember back in 2006 when a Dutch newspaper published a cartoon of the prophet Muhammad wearing a turban shaped like a bomb that was about to explode?  Neither the cartoonist nor the newspaper were investigted for inciting hatred under Denmark's restrictive hate-speech laws, and two years later when police discovered a plot to kill the artist, the newspaper went ahead and reprinted the cartoons in an homage to free speech and "gesture of solidarity" with the cartoonist. 

And remember 'Fitna,' the rabidly anti-Islamic cinematic nightmare by Dutch lawmaker and right-wing radicalist Geert Wilders - the guy who called Islam a Nazi religion and the Quran an instrument of fascism?  The prosecutor declined to open an investigation until a public outcry (and court order) forced him to reconsider whether Wilders violated laws against inciting religious hatred.  Charges were filed but ultimately dropped when the prosecutor concluded that Wilder directed his rants toward Muhammad alone, but not to Muslims as a group.  (whatever.)

But now prosecutors are charging the Dutch affiliate of the Arab-European League with inciting hatred in a cartoon that suggests that the holocaust was a hoax.  Immediately after the cartoon appeared on the group's website in August, the prosecutor gave them two weeks to take it down, or face criminal charges.  The AEL complied initially, but reposted the cartoon once charges against Wilders were dropped.  

A spokesperson for the AEL said the cartoon was not meant to incite hatred and did not reflect its actual views about the holocaust.  Their goal, apparently, was to highlight the prosecutor's double-standard, and the  'incomprehensible' decision to threaten prosecution against AEL while dropping charges against Wilders.  Neither of the cartoons, he said, should lead to prosecution.

Still, prosecutors are forging ahead with charges that carry a year long prison sentence and $6700 fine.  The justification: although the Muhammad cartoons "can be offensive . . . the Holocaust cartoon crosses the line."     

It's hard to get your mind around the level of hatred wrapped up in these events.  But leaving aside the arguments for or against hate-speech laws generally, one does have to wonder what measure prosecutors are using to distinguish cartoons that are merely 'offensive' from ones that will land you in jail.

-Kathleen A. Bergin

Computer Terrorism and the Laws of War

A colleague of mine today raised an interesting question to which I don't know the answer.  He wondered if anyone was writing on the parallels between cyber-terrorism and the laws of war.  He was thinking specifically about situations where a remote cyber-attack effectively brings down the infrastructure in a target country (eg hospitals, schools etc).  Does anyone know of any work that brings together the fields of, say, International Humanitarian Law on the one hand, and Cybercrime on the other?

Lockerbie Bomber Released From Scottish Jail

The Scots have caused what is starting to amount to an international storm by releasing Abdelbaset Ali al-Megrahi, the only person convicted in the destruction of Pan Am Flight 103 over Lockerbie, Scotland in 1988. According to the initial BBC Web report:

The Lockerbie bomber has left Scotland on board a plane bound for Libya after being freed from prison on compassionate grounds.

Abdelbaset Ali al-Megrahi, 57, was jailed in 2001 for the atrocity which claimed 270 lives in 1988.

The decision to release Megrahi, who has terminal prostate cancer, was made by the Scottish Government.

There is more coverage, including a report that Megrahi still maintains his innocence, and another more recent BBC story raising questions about the release. Reactions have generally not been supportive (including those of the  white house and the US Attorney General) of the Scottish Executive's decision. That said, the decision reflects a fundamental distinction between European and American attitudes on punishment and incarceration, including the death penalty. As a death penalty opponent, I often find myself more in line with European sentiment on criminal punishment.

That said, I don't personally support the decision to release Megrahi. While I can understand that questions of compassion might dictate the release of a killer or other criminal prior to a full term of incarceration being served, and I prefer the European approach to the U.S. "punish, punish, punish and punish some more" mentality, I don't think that dying of a natural disease (or old age) in prison is in and of itself an end that society needs to go to great lengths to avoid. I have not studied nor thought deeply of these issues before now, but on first reflection, I think the questions that need to be asked in such a situation are:

1. whether there are reasonable arguments that compassion serves to mitigate against the convicted person serving the entirety of their sentence; if so, then
2. whether the person convicted has served such an amount of time, considering the seriousness of their crime and its effects on victims and society (including the victim's families and others who knew them), and given the totality of the circumstances, that a reasonable argument can be made that the crime has been "paid for" in some sense; if so, then
3. whether there is any reasonable possibility that the convicted person may engage in further crimes once released.

Here, I don't think that the case can come anywhere close to meeting the second part of the test. I  cannot personally think of anyone I know who would think that an eight year sentence is sufficient to even begin paying for the damage caused by the 270 lives intentionally killed by Megrahi (and others). So, it would not satisfy step two, even if it satisfies step one. The facts aren't all out yet, but the extent to which the Scottish Executive considered the issues raised in number two isn't at all clear from what I have read.

I did have a friend, Lynne Hartunian, who died on Pan Am 103 (a classmate at the State University of New York College at Oswego), so perhaps I am not sufficiently object to make any kind of objective case here. But trying to look past my own emotions, and those of my friends, I'm still not sure I fully understand what the Scots were thinking.