The Prism of Work
June 3, 2013 § 4 Comments
In the following essay I will describe a carefully reasoned dissent from my two “Lynch Law” efforts. I will also try to explain the way my thinking about the issues differs in some fundamental ways from the dissenter’s. I will attempt to do this without discounting the dissents’ reasoning.
In response to my posts entitled “Lynch Law” and “Lynch Law Two”, I have received two thoughtful dissents from a reader who shares my political beliefs but rejects my reasons for criticizing President Obama’s terrorism speech. The dissenter made three cogent and well reasoned arguments:
First: He wrote that the Authorization for Use of Military Force (AUMF) is a fact; that regardless of whether it was wise, appropriate or necessary, Congress adopted it by an overwhelming vote (unanimous in the Senate; one dissenting vote in the house) hence Obama, the President, should not be faulted for using the authority it granted to the presidency.
Second: He wrote that it is a fact that there are terrorists and terrorist networks in the world that threaten to harm the United States.
Third: He wrote that, based on the obvious intent of its framers, the AUMF should be interpreted to authorize the President to locate and either kill or capture any terrorist in any part of the world outside the United States if the target poses a threat to the United States.
Here are the words of the AUMF: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
To the dissenter, the plain meaning and intention of this sentence can be expressed as follows:”That the President is authorized to use all necessary and appropriate force . . . in order to prevent any future acts of international terrorism against the United States . . . .”
I contend the past tense verbs used in the AUMF to describe its targets limit the scope of its authorization for use of force. He responded that, on the contrary, they were comparable to the recitation of Japan’s transgressions in the 1941 declaration of war against that nation. As he correctly observed, the fact that the transgressions occurred before the declaration did not limit the scope of our war against Japan. To illustrate this point, the dissent posed a hypothet. He stated that if, when the war was closing in on the Japanese homeland, the island of Honshu had changed its name, became no longer a part of “Japan” and opted to fight on after Japan surrendered,, we plainly would have paid no attention to the name change and would have proceeded to make war on the inhabitants of that island without further Congressional authorization .
Finally, he observed, again correctly, that some very good lawyers advising Obama disagreed with my analysis and they could not fairly be lumped in with John Yoo as lawyers whose reasoning was based on ideology.
Some Comments on the Dissent
It is hard to argue with the dissent’s contention that when Congress adopted the AUMF, it intended to authorize a broad military attack on any foreign organization, country or individual that posed another threat of a 9-11 type attack on the United States. The AUMF was adopted just seventeen days after the stunning attack of September 11, 2001. Emotions were running high. Anger and fear were palpable and Bush, the NeoCons and talk radio demagogues were in full cry.
Any analysis based on “legislative intent” is almost always a fiction because each voter in the body had his or her own, essentially unknowable, intention when he or she voted. Having said this, however, it is true that, as President Bush proceeded to interpret AUMF as a license to torture prisoners, intercept emails and phone calls, use dragnet arrests to jail large numbers of Muslims and establish “black sites” all over the world where prisoners were held incommunicado regardless of the Geneva Convention or any other law of war, Congress, generally remained silent. And that silence can be fairly interpreted as assent to his actions.
It is also true, however, that as reports began to surface of Bush’s wild-west carnival of horrors,, some members of Congress began withdrawing their support. By 2005, there was some support in Congress for his impeachment. So, the “intent” of Congress was an evolving phenomenon. In my first “Lynch Law” post, I linked to a Huffington Post video of the stunned reaction of some Senators when Pentagon representatives, testifying before a Senate committee, declared their understanding of the AUMF’s breadth of authority. Senator McCain, who rarely sees a war he doesn’t want to wage, said he did not think Congress intended such an unfettered grant of authority. Here again is that link: Huffington
So far as concerns the dissenter’s creative hypothet about the name change of the island of Honshu, I am not as sure as he is that if that had occurred and a new nation was thereby actually created, further Congressional action would mot have been required. A somewhat similar occurrence happened when Nixon began military operations in Cambodia during the Vietnam war. He tried unsuccessfully to keep his expansion of that war secret but, of course, bombs, helicopters and armed troops are too obtrusive to be invisible to reporters. He didn’t bother to ask Congress for approval because his disdain for the niceties of constitutional government is legendary. That may be an inapposite example, since the Vietnam war itself was probably illegal since it was based on a false report and not on a formal declaration of war by Congress.
This issue, the identity of those against whom the AUMF authorized deadly force, is at the heart of my disagreement with the dissent. If the authorized targets of the AUMF are subject to discretionary selection by the President, then we have a Commander in Chief with access to a world-class military machine, unrestrained concerning its use other than his judgment and presumed devotion to our form of government and a requirement that he use it only to protect us from terrorist attacks. There is a vast difference between a President with constitutionally limited powers and a protector charged only with the task of keeping citizens safe. See Orwell, “1984”.
I regard the result of the dissent’s reasoning, especially on the third issue, as troubling In the remainder of this essay I will try to explain why.
A Lawyer’s Way of Interpreting Contract Language
Statutory interpretation and contract interpretation are based on generally similar legal principles. In the case of federal statutes, the debates preceding the enactment of a law afford clues to the intentions of the framers not available with respect to most private contracts. Still, the same principles apply to both. The objective is to give effect to the intention of the parties who draft the language, provided they have expressed that intent in a form that can be determined without ignoring the words used to express it.
That is, the “four corners” rule applies. The writing must be interpreted based on the writing within the “four corners” of its documentary record. The drafters will not be allowed to walk away from the drafting and, next day, proclaim that some of them “really did not mean what the words state.” Contracts and statutes are written because they are intended to be “time binding” events. That is, they fix in time the agreement of the parties. That agreement, of course (and contrary to the foolishness of Justice Scalia’s “original intent” obsession) can be couched in deliberately ambiguous language, leaving room for later application to changing circumstances. Our Constitution is worded that way. “Interstate commerce”, was not intended to apply only to the 1789 forms of commerce. “Searches”, as used in the 4th Amendment was not intended to apply only to the technology available to searchers in the 1700’s. Oliver Wendell Holmes wrote that a “word is the skin of a living thought” and the operable word is “living”.
One reason lawyers [I am not comfortable with the word “attorney”. It is based on the French word attourne, one to turn to. French words seem to me generally effete and pretentious. I think of myself as a lawyer (Middle English originally “lawyere”)] have a well-deserved reputation for being trouble-makers is that, when they analyze the language of a contract or any other kind of agreement, they try to imagine how it would permit one party or the other to use its language in the worst, unfair and disagreeable manner at the expense and inconvenience of the other party. Then they add or subtract whatever language is required to preclude such an event or interpretation. They regard that as appropriate, regardless of how reasonable and agreeable the parties are when the contract is drafted.
That is the way I analyze the language of the AUMF. I seek an interpretation of its language that would appropriately restrain the discretion of Ted Cruz, not Barack Obama. So I choose an interpretation called the “plain meaning” rule. The dissent chooses to interpret it according to the “intent of the framers” rule.
Both approaches are accepted by courts in appropriate situations. There are limits to each approach. For example, drafters of a contract are not allowed to use words in some sense other than their common meaning unless they specify the intended meaning. This does not prevent use of “terms of art” if, in the context of the contract, the meaning of such terms are discernible and are generally understood in the industry or environment in which the contract is drafted. It does, however, preclude one of the parties from contending, for example, that the phrase “bay horse” was intended and understood by the parties to mean “roan horse” when the contract was drafted. If that were permitted, the contract would depend on verbal testimony and would prevent courts from being able to enforce the written language of the contract, thus vitiating the time binding purpose of written agreements.
As I read it, the identity of those affected by the AUMF is plainly stated in words used in their ordinary sense. To illustrate this point suppose, instead of “the terrorist attacks of September 11, 2001”, the AUMF stated “the attack on the United States consulate in Benghazi on September 11, 2012″. Wouldn’t the targets be limited to those persons, nations or organizations” that were actually involved in that attack? Would a reasonable interpretation of that statement assume that it would justify a drone attack on someone in Somalia or Pakistan? I don’t think so.
This narrow interpretation would not conflict or dilute the meaning of the concluding phrase, “. . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” One standard purpose of apprehending and punishing wrongdoers is to make example of them to discourage others from attempting other crimes. That purpose is served without waging a wide ranging assault on all similar but different wrongdoers.
Because the U.S. Department of Justice and Pentagon and White House lawyers disagree with me, I cannot deny that there are differing ways to interpret the language. What I do argue is that, given the consequences of the broad interpretation of the AUMF, there are strong policy reasons for interpreting it narrowly rather than broadly.
Interpreting it as broadly as the dissent and the just stated government lawyer do, results in a state of martial law throughout the world outside the boundaries of the United States. It results in a state of war on a boundless battlefield. The law of war cannot apply to that state of war because there is no way objectively to identify enemy combatants. The distinction between enemy soldiers and civilians is rendered impossible. If one is accused of being an enemy, that is sufficient to impose the death penalty. Analogies to wars between uniformed armies cannot be applied. In other words, neither the law of war nor constitutional law applies. The President becomes the ultimate and sole “decider”.
President Obama’s speech on terrorism was becomingly uneasy with this unlimited authority. He disclosed that he is considering various ways of structuring self-imposed limits on his war making authority. At the same time, and in the same speech, however, he claimed the right to make the decisions about such limits and how they would be administered. That claim converts his speech into a discussion of executive policy.
Policies, unlike laws and constitutional restrictions, can be changed from one administration to another. Presidential authority can be limited in only two ways: By a formal declaration that the authority is no longer claimed, in this case by either the President or the Congress, or by the judgment of a court of appropriate jurisdiction. Obama’s speech will serve as President Ted Cruz’s justification for his use of the AUMF powers because it satisfies neither of those ways.
The Political Dilemma
I recognize that my arguments, if credited by President Obama, would confront him with a dilemma fraught with peril. If he goes before the American public and declares that the AUMF did not authorize the actions he has taken based on it, he will be confessing to wrongdoing that could have dire consequences for him, for his political party and for the standing and reputation of the United States in the world. I know that will not happen, nor, given its consequences, should it happen. I think that instead, the President should draft a modification of the AUMF that abjures the power to make war on terrorists, terrorist organizations or anyone else. It should authorize the President to use American intelligence forces and law enforcement agencies, domestic as well as international, to identify criminals who participate in planning or executing harmful acts directed against the United States.
He should explain to the public and the world that the United States is a nation of laws based on a Constitution. That we will defend ourselves against criminal acts and assist and cooperate with other nations seeking to defend themselves from such acts. He should state that his judgment on this matter is based on his personal experience with conducting these efforts as acts of war and that he has discovered that a state of war without identifiable, specific classes of enemies and without identifiable national boundaries is inconsistent with the laws of war as well as the system of laws and constitutional protections that are cherished by Americans. He should state that, rather than craft a new system of courts to deal with these criminals, he is confident that the American judicial and criminal justice system is adequate to deal with the kind of criminal behavior the new congressional authorization will target.
This switch from a “war on terror” to pursuing criminals who seek to harm the United States would require that, before a person could be branded a “terrorist” subject to capture or death by whatever means are reasonably necessary, a federal grand jury would have to indict him or her and, based on that indictment, a warrant would have to be obtained from a federal magistrate or judge.
Grand jury proceedings are secret, so compromising information sources would not be required. Federal law is entirely adequate to deal with criminal acts before they are actually completed. Almost all federal crimes are accompanied by related criminal laws that make conspiracy to commit the crime a separate and indictable offense. This indictment and warrant process would, however, add the judgment of a grand jury and a judge or magistrate to the process of authorizing government killing. It is a process based on a very long history; a history that is littered with the results of government killing without such safeguards; a history that caused the designers of our country’s government to include this process as part of our law.
Do I think this will happen? Probably not. But I am sure if it did happen it would insure Obama’s place in history along with Abraham Lincoln as a President who took the risk necessary to preserve a vital and noble feature of this country: Its patriotic proud respect for its Constitution, justice and the rule of law. He would become a revered icon of our “land of the free and home of the brave”. Not a bad legacy and poetically symmetrical: From Lincoln, who freed the slaves, to a black president who, in an act of humility, affirmed this nation’s tenacious devotion to its Constitution as a protector of freedom.
A Solution to the “Hiding in Caves” Problem
In Obama’s speech, he said that his drone “death from above” capability was necessary when the threatening terrorists were hiding in caves located in countries that would not or could not gain access to them. If Obama took my advice I would have to offer a solution to that problem.
A solution is already part of our legal tradition. In 1958, when the State of Alabama refused to comply with the Supreme Court’s Brown v. Board of Education decision, Congress enacted a statute, called the Force Act, authorizing Eisenhower to send the National Guard to Little Rock to protect black students who sought public education in a previously all white school. Congressional action was necessary because the 1878 Posse Comitatus Act, as part of the the settlement of the Samuel J. Tilden v. Rutherford B. Hayes presidential election contest, prohibited federal troops from enforcing state laws, thereby ending Reconstruction in the South and putting the Republican Hayes in the White House. The 1958 statute did not repeal the Posse Comitatus Act. It merely granted specific authority to solve a specific problem.
This kind of Congressional authority could be sought if law enforcement authority proves incapable of dealing with a specific terrorism problem. In most cases, secrecy would not be necessary. If part of the information submitted to justify the authority sought needed to be secret, that could be accomplished in committee hearings conducted behind closed doors. That circumstance would be unlikely in most instances. The recent example of Anwar Awlaki’s drone killing did not result from secrecy. His name on a “hit list” had been mentioned in press reports for months before he was finally killed.
The point is that the checks and balances system of our government would be restored and unlimited presidential authority would be avoided.
At the present time, we are embroiled in a national debate over limiting the discretion of the IRS and the subpoena power of the Justice Department versus the privacy of news reporters. I suggest that carefully limiting the war powers of the President is far more important than either of these matters.
The Prism of Work
I entitled this piece “The Prism of Work” because, when faced with reasoned dissent from a man who generally shares my beliefs and opposes those whom I oppose, I had to ask myself, “What has happened to you? How did you arrive at this point, attacking a President whom you stoutly supported and respected; motivated to write several pages of diatribes that sound like Rand Paul’s denunciation of ‘big government’? Have you, at last, slipped your moorings and become a candidate for the Tea Party?”
You will not be surprised to learn that I reject that characterization, but that doesn’t mean that I haven’t had to question why, in this context, I feel so strongly suspicious of government power.
The answer is that much of the work I did for more than fifty years consisted of arguing against discretionary authority. My work for labor unions often consisted in opposing management decisions to fire, demote or otherwise discipline some employee. The tension was usually between contractual protection of seniority versus the “management rights” discretion of company supervision to manage the workforce. In fact, in law school I wrote and defended a research paper in a labor law seminar which argued that the concept of “management rights” was no longer appropriate because enterprise ownership was no longer held by the craftsmen who performed the work, but by the corporate financiers who furnished the capital. I contended that allowing money managers to manage production processes was inappropriate and illogical. I did not persuade my professor or any of the other members of the seminar, but I persuaded myself.
In addition to these arguments based on private contracts, I spent several years representing public school teachers, students and professors in government supported colleges and universities. My opponents in those cases were school superintendents, college and university department heads, athletic directors and governing boards. I was always trying to impose due process or First Amendment limits on managers who claimed the right to make subjective, discretionary decisions.
I think that record left me with enhanced sensitivity and pervasive hostility toward unfettered authority. My experience was that, in the absence of accountability based on some objective limits, people with authority were often prone to defensive hostility toward any challenge to their decisions from those whom they supervised and managed. They feared public exposure of their choices and actions. They were uncomfortable at the prospect of being judged by any independent arbiter.
So, given this work record, the notion of a runaway Commander in Chief of the U.S. military establishment rang just about every alarm bell in my brain.
George Lakoff, a professor of linguistics has written extensively about the way that “framing” issues determines the way our brains process them. He has also offered evidence that, over time, presenting an issue framed in a specific way causes changes in the way we react to similar issues. I have written about this and Lakoff’s book, The Political Mind in a previous post entitled Recent Thoughts. I think this is pertinent to my reaction of the issues raised in this essay. Over and over, as part of my work, I framed issues for judges, juries and arbitrators that equated legal limits on government and management discretion with “truth, justice and the American Way”, just like Superman taught us.
Thorstein Veblen anticipated some of the brain research done by Lakoff and others in his 1904 book, The Theory o f Business Enterprise. Veblen wrote before the invention of MRI’s and brain scans, but he was a keen observer of human behavior. He wrote about the “discipline of the machine”. According to Veblen, those who worked with machines developed reasoning and thinking habits and frameworks different from those who worked with money and the various ways it could be accumulated and strategically used in a market based economic system.
Here is his description of this difference:
“Leaving aside the archaic vocations of war, politics, fashion and religion, the employments in which men are engaged may be distinguished as pecuniary or business employments on the one hand, and industrial or mechanical employments on the other hand.”
Veblen described the two separate “employments” as follows:
“. . . one class of men has taken over the work of purchase and sale and husbanding a store of accumulated values . . . [while another class of men has] given their attention to the mechanical processes involved in this production for a market . . . .”
He contrasted the thought processes of the “pecuniary” class with the “production for market” class as follows:
“The end of . . . [the pecuniary class’s] reasoning is the interpretation of new facts in terms of accredited precedents, rather than a revision of the knowledge drawn from past experience in the matter-of-fact light of new phenomena. The endeavor is to make facts conform to the law, not make the law or general rule conform to facts. The bent so given favours the acceptance of the general, abstract, custom-made rule as something real with a reality superior to the reality of impersonal, non-conventional facts.”
I became aware of Veblen as a nineteen year old sophomore at UT, under the tutelage of Clarence Ayres. I never became a Veblen scholar but I was a dabbler in his writing. I thought of this concept of his when I was examining the origin of my hostility toward Obama’s war powers and the AUMF. I know Veblen was writing about economic functions, not legal arguments. In fact, so far as my reading goes, Veblen never had anything complementary to say about lawyers. He regarded them as no more than retainers in the service of the above mentioned “pecuniary class”, the object of much of his biting and occasionally hilarious critical commentary.
I know it may seem a stretch to drag Veblen into this essay but, to me, he adds a dimension, a new variable to Lakoff’s analysis. Lakoff uses modern technology and the science of linguistics to demonstrate that our thinking is molded by what we hear and see. Veblen adds that it is also affected by what we do.
All this personal information is not offered to bolster the value of what I have argued. It is added to describe the prism through which I view the world. Whether you regard that prism as a disability or a benefit depends on whether your reaction to Obama’s speech about terrorism is like mine or like the entirely defensible one expressed by the dissent.