Tag: law

How to do (presidential) things with words

Donald Trump’s home has been raided by the FBI. While there has been no official announcement of the object of the raid, most are assuming that the government is looking for official documents that the former president may have taken with him from the White House. And particular concern has been raised about possible secret (classified) documents. This raises an interesting legal question, because it is generally accepted that the president has broad latitude to classify and declassify any information.

One of the great texts of modern Anglo-American philosophy of language is J L Austin’s How to Do Things with Words. The title is brilliant, of course, and it compelled me to pick it up off a friend’s bookshelf and read it before I’d ever heard of it or knew how significant it was. As someone who had immersed himself as a teenager in the early twentieth century mathematico-logical approach to Austin’s simple point was a revelation: Language is not solely (or even mainly) about making statements about the world that can be judged on their truth value. (Wittgenstein had already led me into this terrain, but Austin is much more concrete, and not so oracular.)

Austin’s point is that there is a whole class of “speech acts”: Verbal utterances that are not true or false, but actions. Examples are

  • Making a promise;
  • Naming something (e.g., a ship christening, one of Austin’s examples);
  • Issuing a challenge, bet, or threat;
  • Marrying (meaning here, performing the ceremony, though also one of the parties making marriage vows);
  • Making an order;
  • Handing down a legal ruling.

Crucial to Austin’s analysis is that we need different categories for describing the success of such utterances. Not truth, but appropriateness. Basically, there needs to be an accepted conventional procedure for conducting this act at a certain time, with agreement that the procedure has a certain effect, and such that the role of uttering the words has an established role in the procedure. And this procedure must have been carried out in the correct circumstances by appropriate people, and in the correct manner.

Which brings us back to the sticky-fingered former president. One of Trump’s lackeys is insisting that Trump can’t have broken the law regarding classified information, because he declassified all of it before he stole it. (Regardless of whether the information officially classified, he presumably still contravened the Presidential Records Act by taking the government documents, but that seems like a more politically venial crime than mishandling classified information.)

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Kash Patel, a former staffer for Rep. Devin Nunes (R-CA) and, briefly, a Pentagon employee, told Breitbart in May.

“I was there with President Trump when he said ‘We are declassifying this information,’” Patel added.

There is an established procedure for declassifying documents, which may be invoked by a president, but it is more complicated than the president simply declaring “I declassify thee”. (For one thing, how would you define the blast radius of such an order? Has the president declassified all information held by the government? Everything written on papers in the general direction the president is gesturing at? What about an encrypted laptop in the same room?) “Per a 2009 executive order, markings on classified material need to be updated to reflect changes in their status.”

Patel went on to suggest that Trump had been betrayed, but that his order to “declassify” should retain legal force.

“It’s petty bureaucracy at its finest, government simpletons not following a president’s orders to have them marked ‘declassified,’” Patel said. “The president has unilateral authority to declassify documents — anything in government. He exercised it here in full.”

In Austin’s framework, there is a conventional procedure being invoked here, and the president is the appropriate person to invoke it. But the procedure was not carried out in the correct manner. It is rather as though an eager couple in a hurry appears in church. They haven’t registered their marriage (28 days required by law in England), and they don’t have time for a full ceremony. The priest says “I declare you married” and sends them on their way.

Trump’s lackey treats this as a mere matter of “petty bureaucracy”, but the need to exercise power through formal procedures is an important check on autocracy. In the Third Reich the Führer’s will was paramount, even if it had not been expressed. Germans were supposed to “work toward the Führer”. Requiring explicit instructions in specific forms creates a modicum of transparency and accountability.

There’s a certain formality two-step here that is immensely corrosive of public responsibility. You start with the observation, the president has the right to do X if he chooses. It’s a plenary power, potentially dangerous, so it is hemmed in by various complications and procedures. In particular, he needs to explicitly invoke the power. Which you can’t do in the required specificity to an unlimited extent. And then you start to say, well, it’s his power, he could exercise it any time he wants, so it’s mere pettifogging to insist that he actually have done that rigmarole of invoking, and pretty soon everyone is just working toward the leader, guessing what the law currently is.

The importance of saying “importance”

Susan Collins — Republican Senator from Maine — has made herself a legislative punchline by consistently pretending to be moderate by expressing her “concern” for the potential consequences while voting down the line for right-wing priorities. In particular, she claimed repeatedly to support abortion rights while voting for the Trump Supreme Court nominees who were committed to overturning Roe v. Wade. (She infamously proclaimed — after voting against conviction in Trump’s first impeachment trial — that she believed the president had “learned his lesson”. Which, in a sense, was true.)

Now she is shocked at how those justices deceived her. But the evidence is… unconvincing. Her staff have shared notes with the NY Times, from her discussions with Brett Kavanaugh during the time when the Senate was considering his nomination. He said:

Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law… I understand precedent and I understand the importance of overturning it…

Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences

“Lots of people care about it.” No suggestion that he cares about it. The only thing he says about his own intentions is literally the opposite of what Collins suggests. If he had said in a secret meeting with Trump “I understand the importance of overturning” precedent, everyone would understand that he was promising not to protect Roe v. Wade. It actually takes a lot of wishful thinking — Collins’s specialty — to interpret that as a promise to protect abortion rights precedents. That would normally be expressed as “the importance of not overturning precedent”.

The Rwandan Shabbos elevator

Comments on the present Tory government’s contempt for the law have tended to focus on the prime minister’s lockdown parties, or his bribes for home redecorating, or his lying to Parliament. But there has been nothing so explicit and brazen as the prime minister defending a plan to send asylum seekers to Rwanda to await decisions on their cases, as a necessary defence against “a formidable army of politically motivated lawyers”. Rather like the US sending prisoners to be tortured abroad — or doing it themselves in the law-free zone of Guantanamo — he is saying that our legal protections for asylum seekers are too onerous (when lefty lawyers have the audacity to actually use them) so we’re going to evade the law by sending the people to another jurisdiction where they don’t apply. Rather than simply change the law to match what he believes ought to be done, providing clarity and confidence to all concerned.

Which brings me to… the Shabbos elevator. One of the things that makes Orthodox Judaism seem bizarre to us Liberal Jews is its never-ending struggle to put one over on God. The Torah is full of rules and regulations — 613 of them according to one popular enumeration — and these are variously extended, expanded, and interpreted in various rabbinical texts and traditions to form the quasi-legal corpus known as halakha. Orthodox Jews commit themselves to obeying all of these precepts, which immediately leads — because some of them (like the ban on carrying anything outside or making a flame — interpreted to include electricity — on Shabbat) are quite onerous, some (like the prohibition against borrowing money at interest and the requirement to cancel all debts every seventh year) inconvenient, and others (like the ban on clothing made of mixed fabrics) simply bizarre — devote vast stores of legalistic ingenuity to evading these rules.

Thus you see the Orthodox tying wires — an eruv — around whole neighbourhoods, or even a large part of a city, to define it as a single “household”, where objects may be carried and journeys are permitted on Shabbat. They formally transfer their loans to a rabbinical court to avoid the required cancellation of debts in the Sabbatical year. They put their electric lights on automatic timers on Shabbat. And in hotels and apartment blocks — particularly, but not only, in Israel — they continue to use elevators that are specially designed to stop on every floor on Shabbat (to avoid needing to activate electrical buttons).

In his book The Shabbat Elevator, and other Sabbath subterfuges, the folklore scholar Alan Dundes considers the question of why the same people would have a set of overly strict customs, and then “counter customs” that relax the strictures. Within the framework of Jewish tradition the explanation is simple: The halakha is not a mere custom, it is the perfect law of God, and so must be followed. To the letter. Not, though, in spirit, because interpreting the spirit is beyond the capacity of mortal man. We are responsible for obeying the exact perfect words as passed on to us from God through our ancestors. These tricks may seem bizarre and counterintuitive, but if God wanted us to behave differently he would have formulated his Torah differently.

To a liberal Jew this seems kind of crazy. Our ancestors collectively created the law, and we do not respect it by evasion. We respect it by updating it. That forces us to acknowledge what we are doing, and to justify it, to ourselves and to our community.

And so it is with refugee law in Britain. If the UK government finds the law inappropriate, if it admits what they consider abuse by lefty lawyers, then they are free to use their majority in parliament to change the law, and to remove the legal rights and protections that refugees currently enjoy. To leave the law in place, but to evade it by sending the asylum-seekers to a country where they are not legally protected is bizarre and pointless, except as way of avoiding responsibility for the moral principles that their ancestors encoded into British law.

Kavanaugh’s evil twin and the Hitler diaries

I was in high school when the Hitler diaries flashed across the media firmament, and I was fascinated by the eagerness with which so many responsible people accepted as plausible what were quickly unmasked as transparent frauds. An important selling point was the observation that the diaries never mentioned the extermination of the Jews, and I remember very specifically an article in Time magazine that teased the possibility that Hitler himself may not have known of the extent of the Holocaust, with speculation by historians that underlings may have acted on their own. I had an insight then about what would motivate people to seek out evidence that someone they “know” — even if knowing them only by their reputation as a famous monster — was innocent of an important crime. Just by learning about a historical figure we inevitably develop some psychological identification with him, he becomes one of our acquaintances, and then to mitigate the cognitive dissonance we are attracted to exculpatory evidence, even better if it is such as tends to diffuse responsibility rather than creating other specific monsters.

The writer Richard Marius once told me that after he had written his biography of Thomas More, where he had to come to some resolution on the purported crimes of Richard III, and decided that Richard was guilty of everything, he got harassed by people calling themselves Ricardians. They insisted that the criminals were Henry VII, or Edward Tyrell, or some anonymous unknowable others. Again, Richard III is a famous villain, but since he is famous, people identify him, and want to believe him not such a villain.

The French aphorism tout comprendre c’est tout pardonner goes deep. Bare familiarity is enough to create a motivation to pardon everything.

I see a connection to the way conservatives jumped at the theory that Christine Blasey Ford had indeed been sexually assaulted, but that she had mis-identified Brett Kavanaugh as the perpetrator. This doesn’t change anything about the number of evil people in the world, but it renders them anonymous. (Ed Whelan crossed a line when he went full Ricardian and accused a specific classmate of Kavanaugh’s. In principle, this serves all relevant purposes of the free-floating accusation, but by libelling a specific private citizen it created too many other complications and even, dare I suggest, moral qualms.) Continue reading “Kavanaugh’s evil twin and the Hitler diaries”

Hysterical costs

There’s an interesting article in the NY Times about a young legal scholar, Lina Khan, who is gaining attention for a novel and detailed argument that antitrust enforcement in the US has come to be inappropriately fixated on price as the sole anticompetitive harm, and so giving a free pass to Amazon. I have no original thoughts about the argument, but I am intrigued by the dismissive language of the critics cited in the article. One (antitrust lawyer Konstantin Medvedovsky) called her approach “hipster antitrust”. And then there’s this:

Herbert Hovenkamp, an antitrust expert at the University of Pennsylvania Law School, wrote that if companies like Amazon are targeted simply because their low prices hurt competitors, we might “quickly drive the economy back into the Stone Age, imposing hysterical costs on everyone.”

Is “hysterical costs” a real thing? Or was he just reaching for a word that would impugn the rationality of a female opponent, and came up with the classic wandering womb?

Project Reassurance

The EU has recommended in a new document that member governments make specific preparations for the possibility of the UK leaving the bloc without any negotiated arrangement.

Among other issues, it highlighted what a no-deal Brexit would mean for citizens, saying: “There would be no specific arrangement in place for EU citizens in the UK, or for UK citizens in the EU.”

Asked specifically about this, Raab said: “Well, I think that’s a rather irresponsible thing to be coming from the other side. We ought to be trying to reassure citizens on the continent and also here.”

Raab said it was “far-fetched and fanciful” to think that, in the event of a no deal Brexit, the government would not act “swiftly” to secure the legal position of EU nationals in the UK.

Irresponsible to be recommending preparations for an eventuality that leading members of the UK governing party are promoting as their preferred outcome.

Utterly fanciful to think that the UK parliament would not be capable of coming to a rapid consensus, particularly when it comes to assuring the human rights of foreigners, whom the political class all hold so dear. Why could anyone suspect that the UK government would not act with the utmost humanity and sensitivity to the situation of long-time UK residents whose legal position is not clearly defined. I can’t think of a single reason. What’s the worst that could happen?

And it’s not as though the UK hasn’t specifically refused to provide legally binding assurance that Europeans resident in the UK will maintain their current status. (The most charitable explanation for this is that they wish to threaten the EU citizens in the UK in order to raise pressure on the EU in the negotiations. So much for the EU document being irresponsible and “obviously an attempt to try and ramp up the pressure”.)

Jared Kushner thinks ahead on prison reform

One of the oddest trends of the latter half of the odd 1970s in the US was the transformation of law-and-order conservatives like Charles Colson and even G. Gordon Liddy into prison-reform advocates, after they had spent some time themselves in federal prison for their role in the Watergate scandal. The President’s son in law isn’t waiting. Congress is considering a package of reform measures to improve federal prison training programmes, and increase the possibilities for early release for good behaviour. Reports are that Kushner has taken time out of his busy schedule making peace in the Middle East and solving the opioid crisis to lobby for the bill. JK is, of course, famously well behaved. What good is advocating prison reform if it comes too late for you to take advantage of it?

The president’s dilemma

In the classic prisoners’ dilemma, two members of a criminal gang have been caught by police. There is enough evidence to convict them of minor crimes, but without testimony from one of them they will receive only a light sentence, say one year in prison. If one of them agrees to cooperate with the investigation, prosecutors will let him out for time served, and be able to send the other to prison for ten years. But if they both cooperate with the investigation, both will go to prison for five years (perhaps because the prosecutors will have their information, but not their testimony). Key to the game is that the players are unable to coordinate their strategy. Clearly the best for both of them would be to keep quiet, but the strategy of cooperating with the investigation is superior, from their private perspective, regardless of what the other player does. So they both talk, and both get heavy sentences.

One weird thing about the story here is that the symmetry really doesn’t make sense. It’s not impossible, but it’s peculiar to imagine prosecutors being so interested in pinning the major crime on someone that they’re willing to let a confederate walk free, but indifferent to who flips on whom. That suggests we consider a less-known hierarchical version of this game, where one player is the powerful boss of a crime syndicate — let’s call him “The President” — and the other one is “The Attorney”, who knows all the details of his crimes, and is sufficiently involved to be criminally liable himself. Let’s call this game “The President’s Dilemma”. Continue reading “The president’s dilemma”

Natural frequencies and individual propensities

I’ve just been reading Gerd Gigerenzer’s book Reckoning with Risk, about risk communication, mainly a plaidoyer for the use of “natural frequencies” in place of probabilities: Statements in the form “In how many cases out of 100 similar cases of X would you expect Y to happen”. He cites one study forensic psychiatry experts who were presented with a case study, and asked to estimate the likelihood of the individual being violent in the next six months. Half the subjects were asked “What is the probability that this person will commit a violent act in the next six months?” The other half were asked “How many out of 100 women like this patient would commit a violent act in the next six months?” Looking at these questions, it was obvious to me that the latter question would elicit lower estimates. Which is indeed what happened: The average response to the first question was about 0.3; the average response to the second was about 20.

What surprised me was that Gigerenzer seemed perplexed by this consistent difference in one direction (though, obviously, not by the fact that the experts were confused by the probability statement). He suggested that those answering the first question were thinking about the same patient being released multiple times, which didn’t make much sense to me.

What I think is that the experts were thinking of the individual probability as a hidden fact, not a statistical statement. Asked to estimate this unknown probability it seems natural that they would be cautious: thinking it’s somewhere between 10 and 30 percent they would not want to underestimate this individual’s probability, and so would conservatively state the upper end. This is perfectly consistent with them thinking that, averaged over 100 cases they could confidently state that about 20 would commit a violent act.