Constitutional Law Prof Blog

A Conversation with the Chief Justice of the South African Con Court

Steven D. Schwinn, John Marshall Law School

Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights.  The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated.  It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.

Cohen, a contributor to U.S. News & World Report and The Huffington Post, is a former foreign law clerk to Chief Justice Mogoeng Mogoeng, whom he interviewed for this piece.

Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":

Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system.  I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.

Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society.  Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa.  We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.

On the use of foreign law:

Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries.  With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions.  This is particularly true with regards to the area of socioeconomic rights and property law.

On closing the gap between reality and an aspirational Constitution:

What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.

I think that the Court, however, has done fairly well in its efforts to close that gap.  Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .

On the next big issues:

The next major court battles will involve the agricultural sector.  If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group[] . . . .  For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively.  So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.

Constitutional Design in the Muslim World

Northwestern University Law School just wrapped up its 2013-2014 colloquium series on Constitutional Design in the Muslim World--an outstanding series of presentations convened by Profs. Erin Delaney and Kristen Stilt.  The program's web-site contains a list of presenters with links to their papers, videos of presentations, links, and a blog.  Check it out.

The Constitutionality of Anti-LGBT Discrimination Laws: US and UK Comparisons Continued

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?" 

The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.  The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today. 

King Henry VIII, an important figure
in the "Church of England"

Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights,"  posting her written remarks on the UK Supreme Court site.  Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws?  Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without."  She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself: 

Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.

This leads her to proclaim:

If you go into the market place you cannot pick and choose which laws you will obey and which you will not.

This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.

Another difference: The arguments before the UK Supreme Court are televised live.

Daily Read: Capital in the 21st Century

In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."

This defining issue is economic inequality.  Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation. 

The proposal is a "wealth tax."  Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges.  But perhaps it's not.

 

Constitutional Challenge to Uganda's Anti-Homosexuality Law

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Uganda's controversial law, The Anti-Homosexuality Act, 2014, long-linked to United States Evangelicals, has been challenged as unconstitutional by a petition filed in the Constitutional Court of Uganda.

The vast majority of the claims of unconstitutionality focus on the rights provisions in the Uganda Constitution, including explicit rights of equality, privacy, dignity, civic participation, freedom from cruel, inhuman and degrading punishment, expression, for persons with disabilities, and fair hearing.  The claims also rely on the principles in the "National Objectives and Directive Principles of State Policy" which are part of the Constitution.

Here are a few examples of the ultimate legal arguments in the petition:

THAT sections 1, 2 and 4 of the Anti-Homosexuality Act 2014, in defining and criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) & (2), 21(1), (2) & (4) and 27 of the Constitution of the Republic of Uganda respectively;

THAT section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda;

THAT Sections 7 and 13(1) & (2) of Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counselling, procuring and promotion of homosexuality, create offences that are overly broad, penalise legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, Articles 2(1) & (2), 8A, 28(1), (3b), & (12), 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda 1995.

There are certainly many who hope the Uganda Constitutional Court will look to the prestigious Constitutional Court of South Africa for guidance in deciding these issues, although unlike the South African Constitution, the Uganda Constitution does not have an explicit provision protection sexual orientation.

[H/T Tony Tate]
[Image of Uganda Coat of Arms via]

 

World Justice Project's Rule of Law Index 2014

The World Justice Project released its Rule of Law Index 2014, a report that "measures how the rule of law is experienced in everyday life in 99 countries around the globe, based on over 100,000 household and 2,400 expert surveys worldwide."

Adherence to the rule of law is assessed using 47 indicators organized around eight themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.

The report ranks the U.S. 19th out of 99 countries worldwide, and 13th out of 24 in the Americas.  We got our worst scores for "accessibility and affordability" in the civil justice system, and "no discrimination" in the criminal justice system.  High points included absence of corruption (across the board, except that "no corruption in the legislature" got a relatively low score), absence of civil conflict, and absence of crime.

Tunisia Adopts New Constitution

Steven D. Schwinn, John Marshall Law School

Tunisia's National Constituent Assembly yesterday approved a new constitution, one of the most progressive in the region, three years after the overthrow of the long-time ruler Zine el-Abidne Ben Ali.  Al Jazeera reports here; BBC here; the Guardian here; Reuters here.

According to reports, the new document says that Islam is the nation's religion (and forbids "attacks on the sacred"), but it does not require religious law, and it guarantees freedom of religion.  Moreover, it guarantees equality between men and women and protects women's rights.  

The new constitution divides executive authority between a prime minister and president.  Prime Minister Mehdi Jomaa announced earlier that a caretaker cabinet would govern until the country holds elections.

Obama's Speech and Directive on NSA Surveillance

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities,"  regarding NSA Surveillance.   Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.

While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:

Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

As for Obama's specific reforms, critics might also argue that they are more "heat than light."  Importantly, Obama did pay more attention to "foreign" persons.  He also broadly stated:

 

In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.

But the details, as usual, can be a bit more perplexing.  For example, consider this qualification to "competitive advantage" :

Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.

The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive.  Afterwards, it tweeted the results of its assessment of Obama's performance:

 

Supreme Court Refuses to Grant Extraordinary Writ to Review FISA's Verizon Surveillance Order

In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER." 

The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court.  The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."

As one of its Questions Presented, the petition stated:

Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.” 

The import of the Supreme Court's denial is both trivial and momentous.  On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases.  On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.

But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.

 

Daily Read: That Shutdown? It's the Constitution's Fault

Who to blame for the lapse of appropriations, also known as the government "shutdown"?

Over at Washington Post, Dylan Matthews argues

it's James Madison's fault. This week's shutdown is only the latest symptom of an underlying disease in our democracy whose origins lie in the Constitution and some supremely misguided ideas that made their way into it in 1787, and found their fullest exposition in Madison's Federalist no. 51. And that disease is rapidly getting worse.

Matthews contrasts the situation with Great Britain:

while it is clear in the U.K. who is to blame for poor economic performance, it's far more difficult for American voters to sort out who's responsible. So they just hold to account whoever they get to vote on first. That leads to more or less random shifts in sentiment, with divided government and ensuing deadlock and crises, which makes assigning blame and holding members to account even more difficult.

Matthews isn't the only one over at WAPo holding up the UK as exemplar.  Max Fisher explains that "Australia had a government shutdown once. In the end, the queen fired everyone in Parliament."  He ends with this arch interrogatory: "Maybe, if we ask nicely, Britain will take us back?"

 

Queen Elizabeth II on a visit to the United States in 2007, with President George W. Bush.

Daily Read: Two Views of NSA

It's worth comparing two views of the National Security Administration (NSA) and its searches.

First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation."  Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations."  Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:

They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?

 

Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata.  They often rely on anonymous sources discussing classified information.   Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even

after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.

[image via]

 

Chinese Constitutionalism and its Enemies

Joanna Chiu writes at The Atlantic that Chinese President Xi Jinping's recent comments in support of legal reform have reignited a debate over constitutionalism and constitutional reform in the country.  ("Reignited," because the government put a stop to those discussions when it imprisoned Liu Xiaobo and interrogated others in response to a manifest, "Charter 08," by a group of intellectuals calling for constitutionalism and restrained Party power.)  Still, she says, any push for constitutionalism or constitutional reform still gets heavy push-back from the government.  And an internal Party memo she cites calls for the eradication of "seven subversive currents" in Chinese society; those include "Western constitutional democracy," universal human rights values, media independence, and civic participation.

Chiu quotes a Shanghai lawyer to summarize the problem:

[The constitution] looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases.  Ordinary citizens cannot use the constitution to defend their rights or redress their grievances.

As for the government's reaction to talk about constitutionalism and reform, this anecdote is telling:

Nevertheless, calls for China to adhere to the 1982 constitution remain.  In December, Beijing University professor Zhang Qianfan published "A Proposal for Consensus Reform," co-signed by 72 intellectuals including He Weifang, demanding that the government abide by the charter.  The proposal suggested setting up a review committee within the National People's Congress as a first step to give the constitution real power.  But the article, which was posted on Zhang's personal blog and the Beijing University Law School website, was soon deleted without explanation.

 We posted previously on Chinese constitutionalism here.

How to Think About Drones

Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists.  The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law.  We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.

Bowden surveys some of the legal landscape and concludes that drone attacks are legal.  But:

Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous.  Some experts on international law say it will become simply illegal.  Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.

He also quotes John Yoo on the relative legality of drone attacks:

I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . .  Because I think the ultimate deprivation of liberty would be the government taking away someone's life.  But with drone killings, you do not see anything, not as a member of the public.  You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees.  It's kind of antiseptic.  So it is like a video game; it's like Call of Duty.

SDS

Daily Read: Blocked on Weibo by Jason Q Ng

As we think about surveillance of electronic communication in the United States,  it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens.  Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations. 

Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.

 

 

Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36).  The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.

RR

 

D.C. Circuit Strikes Congressional Attempt to Recognize Israeli Sovereignty Over Jerusalem

The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem.  The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.

The case will likely go (back) to the Supreme Court, this time on the merits.  This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.

The case was on remand, after the Supreme Court ruled last Term that it did not raise a nonjusticiable political question.  We posted on that case here; here's our argument preview in that case.

The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel.  The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."

Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel.  President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.

Zivotofsky was born in Jerusalem to U.S. citizens.  His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused.  The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.

The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries.  The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone.  (It found original intent inconclusive, however.)

It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.

The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here.  The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy.  The court said that this interfered with the President's power to recognize foreign countries.  

The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder.  The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.

(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)

Judge Tatel, concurring, came to the same conclusion, but started with the passport power.  Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.

SDS

Court Decides "Prostitution Pledge" Case: Federal Statute Violates First Amendment

The United States Supreme Court today decided United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had  refused to review en banc, and which conflicted with a Sixth Circuit opinion. 

The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech.  In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that

the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.

He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.  

The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs.  The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite.  Instead, although the lines could be difficult to draw, the Court held that

the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. 

The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia.  Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues.  He criticizes the majority's distinction between central and not, but also finds that there is no coercion.  He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject."  Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable."  But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument:  "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons."   More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3. 

RR
[image via]

New York's Highest Court on the Constitutionality of Force-Feeding Hunger Striking Prisoners

The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:

in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion.  The court's majority stated:

The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

Yet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions.  The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments.  But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding. 

Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.

As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.

While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded

The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.  

For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.

RR
[image via]

Oral Arguments in USAID v. Alliance for Open Society, the "Prostitution Pledge"

The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. 

 

Courtesan in a Window, 18th C.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. provides: "No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency"

 

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.  The Second Circuit had held the provision unconstitutional.

Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations.  Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:

JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted.  And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.

 Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness."  Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.

Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue. 

David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech.  Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in  a colloquy with Justice Sotomayor:

MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -­

It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,

JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .

There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.

In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities.  Unfortunately, the rationale supporting that fourth entity was not explored.

The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act.  The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain.  More certain is that Justice Kagan's perspective will be sorely missed.

RR
[image via]

Drone Attacks Outside the Ongoing Conflict Zone

The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities.  And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.

Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks.  In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country.  Dudziak explains:

Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association.  "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia.  However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."

But there was a problem:

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier.  (It is not clear whether Mr. Stevenson knew this.)  So the Obama administration's lawyers have cited a statement that was patently false.

Here's the full paragraph from page 4 of the white paper:

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location.  That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations].  See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state).  Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]

Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:

The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work.  If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad."  But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia.  A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.

She writes that we expect more, and deserve more, of President Obama.

SDS

 

 

Zimbabweans Overwhelmingly Approve New Constitution

Zimbabweans voted overwhelmingly this weekend to approve a new draft constitution.  Ninety-five percent of voters cast a ballot in favor, according to the Washington Post and others.  We posted earlier here.

Now the document goes to Parliament and the president for approval and signature--ceremonial steps that'll take another 30 days or so.

The text is available here, at COPAC's web-site.

SDS