There is much to criticize about President Obama’s foreign and military policy toward Libya, and one cannot help being struck by the wide breadth of criticism from both Left and Right, from both the traditional news media and modern cable-news networks ― and even here on Mirror of Justice. We also may question the coherence of a presidential policy that promises to protect the Libyan people from massacre, while shying away from taking direct action to bring about the ouster of the Libyan leader from whom that risk of a bloodbath came and may come again. I worry especially about whether the United States under President Obama has the staying power to remain engaged and ready to stand against mass violence in Libya, once the notoriously short attention span of the world and media has shifted away.
In addition, there are important questions to ask about use of American military force within constitutional constraints. For all the infamy piled on President Bush by those who supported President Obama in the last election, President Bush sought and obtained congressional approval of military action in Iraq. President Obama has acted unilaterally and failed even to seriously consult with congressional leaders, spending much of the period leading up to military intervention on a trip out of the country.
But, while acknowledging these criticisms and challenging questions and agreeing that they deserve continuing attention in the coming days, I want to focus on the fundamental “rightness” of what President Obama has done and on much of what he said last night:
The United States and the world faced a choice. Kadafi declared that he would show “no mercy” to his own people. He compared them to rats, and threatened to go door to door to inflict punishment. In the past, we had seen him hang civilians in the streets, and kill over 1,000 people in a single day. Now, we saw regime forces on the outskirts of the city. We knew that if we waited one more day, Benghazi ― a city nearly the size of Charlotte ― could suffer a massacre that would have reverberated across the region and stained the conscience of the world. It was not in our national interest to let that happen. I refused to let that happen.
Richard Cohen put it in much the same terms in his column today:
[Saving lives] is what this operation is all about ― the prospect that Moammar Gaddafi was going to settle the score in the most horrific way imaginable. Based upon his record and clear indication that he is crazy, a bloodbath was in prospect. What should the world have done? Nothing? Squeeze Gaddafi with sanctions, seize his Swiss accounts, and padlock his son’s London townhouse? None of these measures would have had immediate impact. Sanctions are a slow-working poison. A bullet was needed.
So, thank you, President Obama. And thank God that the United States and its allies were willing to be an instrument to staunch the shedding of innocent blood in Libya.
In the coming days and years, we should reconsider how Catholic “Just War” doctrine applies to the use of force, not to deter international aggression or for a particular nation’s self-defense, but to deliver the innocent from the hands of evil. Self-defense may be a justification for the use of force, but it ultimately is a self-centered one (not that basic personal safety is at all illegitimate as an interest). But, as President Obama rightly said last night: “There will be times, though, when our safety is not directly threatened, but our interests and values are.”
Catholic teaching should be and is compatible with such an approach. Father Raymond De Souza writes:
The world does not need the Church to be a cheerleader for war, which always represents a failure of politics to secure liberty and justice. But what of those occasions when armed force is necessary to secure liberty and justice against a malevolent regime― as is the case in Gadhafi’s Libya? While war itself brings its own horrors, if it is a moral duty, ought not the attempt to discharge that duty bring encouragement from Christian pastors?
Near the end of his life, Pope John Paul II began to establish the case for military intervention for humanitarian reasons:
[A]n offense against human rights is an offense against the conscience of humanity as such, an offense against humanity itself. The duty of protecting these rights therefore extends beyond the geographical and political borders within which they are violated. Crimes against humanity cannot be considered an internal affair of a nation. . . .
Clearly, when a civilian population risks being overcome by the attacks of an unjust aggressor and political efforts and non-violent defence prove to be of no avail, it is legitimate and even obligatory to take concrete measures to disarm the aggressor. These measures however must be limited in time and precise in their aims. They must be carried out in full respect for international law, guaranteed by an authority that is internationally recognized and, in any event, never left to the outcome of armed intervention alone.
Let us pray for peace ― not the false peace of international indifference and passivity, but real peace in a new post-Kadafi/Gaddafi Libya.
Inspired by Orin Kerr's interesting post, I've been thinking a little about the contexts in which action and inaction (or omission) matter across legal disciplines, and specifically for constitutional and criminal law. Our good readers will know that, greatly to summarize, those who argue against the individual mandate in the PPACA Commerce Clause fight rely on the action/inaction distinction: they argue that it is permissible for Congress to regulate commercial activity, but not inactivity (and that the Necessary & Proper Clause doesn't change that conclusion). The characterization of the mandate as regulating inaction, or economic omission, keys the constitutional challenge.
In Orin's post, he talks about Cruzan v. Missouri Dept. of Health, which involved whether there is a due process right to refuse medical treatment that would extend one's life. Traditionally, the state has had the power to regulate suicide (see e.g., the New York Penal Law's provisions criminalizing assisting a person to commit suicide). But Cruzan argued, in part, that because suicide is an action, it is distinguishable from refusing to take life-extending medical treatment, which is inaction. Again, the argument depends on the action/omission distinction. And Orin cites to a long and (per usual) incisive concurrence by Justice Scalia discussing and rejecting the action/omission distinction at least in the substantive due process context (what he will do in the Commerce Clause context is, of course, anyone's guess).
Shifting gears, people who have studied and taught criminal law know that the requirement of an action -- an actus reus -- on the part of the defendant is one of the essential building blocks of criminal law. There can be no prosecution without an action. More than this, the criminal law demands a "voluntary" action; involuntary actions (reflex movements, spasms, epileptic seizures, sleepwalking, etc.) cannot ground criminal liability. The requirement of an act, however, may be subject to some degree of manipulation by "expanding the time frame." That is, one generally can find a voluntary act if one is prepared to look beyond the context of the involuntary act causing the harm. The epileptic seizure causing the car accident can be traced to the defendant's prior failure to take the necessary medication. So long as the defendant's conduct "includes" a voluntary act, he can be said to have acted even though the last act (the act most proximately causing the harm) was involuntary. It is controversial whether, given what, e.g., the language of a reckless driving statute provides, it is appropriate to expand the time frame in this manner.
But sometimes there is no need for an act at all in criminal law. There are times when criminal law can reach omissions to act; as George Fletcher once put it, "commission by omission." Those situations include where the defendant had a legal duty to act (e.g., a doctor); where the defendant stands in some sort of status relationship to the victim (e.g., a parent); where the defendant assumed the responsibility to rescue the victim; and where the defendant has wrongfully (though not necessarily illegally) created a risk of harm to the victim. In the book I use to teach criminal law, there is also an old California case, Barber v. Superior Court, where the court defined the act of ceasing to provide nutrition and hydration as an omission -- the omission to continue to provide medical care. The court in Barber then found that in the circumstances, "[a] physician has no duty to continue treatment, once it has proven to be ineffective." That is, because the court believed that the possibility that the victim's doctors might be convicted of murder would have undesirable social consequences, it used the action/inaction distinction to neutralize that possibility.
Here are my questions to the very good readership here. What is the relationship of the act/omission distinction across the disciplines of constitutional and criminal law? Given the basic doctrine above, are there modes of argument from criminal law that can be deployed in the constitutional (health care)context, or vice versa? Could one use the time-framing strategy, or the omission strategy, somehow to get at the constitutional question? Are there other spheres of law in which the action/omission distinction plays an important role? And most controversially, is there anything of substance to the action/inaction (omission) distinction? Or is it, finally, an empty shell that gives formal cover to what really lies beneath -- the hot, fraught battles of public policy and morality (I'm putting it in strong terms not to signal any strong views on my part, but only to toss a little pepper on the question)?
Mary Leary at Catholic University's Law School has organized what promises to be an excellent National Press Club program on April 7 (5 -- 6:30) on "Child Trafficking: America's Role in the Problem and Solution." Among the speakers are Luis CdeBaca, the U.S. Ambassador to Monitor and Combat Trafficking in Persons, and Peggy Healy, from Covenant House International.
Here's a conference description:
Slavery in 2011 has mutated but not disappeared. Today, it lives on in many forms, including modern child trafficking. Thousands of people, including children, are trafficking throughout the world each year. The United States has been designated as a source, transit, and destination country for trafficked children. This symposium will bring together various stakeholders including the U.S. Ambassador to Monitor and Combat Trafficking in Persons, to focus on the role of the United States in both the problem of child trafficking as well as the response. The conversation is intended as a substantive and productive discussion about current and future goals. It seeks to move the dialog forward for children by examining the reality of children trafficked in the Americas and the ability of U.S. society to respond. The panel will also expected to address current legislation regarding the reauthorization of the Trafficking Victims Protection Act.
UPDATE: Mary sent me this profile of Ambassador CdeBaca, who calls himself "a Vatican II baby", and describes how his Catholic faith shaped his vocation:
Ambassador Luis CdeBaca, a New Mexico-born Catholic of Mexican descent, who runs the Office to Monitor and Combat Trafficking in Persons at the State Department, readily acknowledges that the council's call to Catholics to engage the world guided his decision to become a civil rights lawyer and eventually to prosecute some of the country's largest human trafficking cases.
That call is especially meaningful, he told Catholic News Service, now that he heads the country's top office that works to disrupt the criminal networks that promote modern-day slavery and human abuse.
CdeBaca, 42, called himself "a Vatican II baby."
"It was very interesting to me," he said, "especially coming out of law school as a young civil rights lawyer, to really start digging deeper and to realize that Vatican II, if you looked at 'Gaudium et Spes' (the council's Pastoral Constitution on the Church in the Modern World) and ... (understand) the real concrete church in the world type of things, wow."
For those who are interested in (as we all should be) the nexus of education, religion, civil-society, and family, Charles Glenn's work is invaluable. Here is his latest, "Contrasting Models of State and School":
Through a historical study of two very different pairs of European countries, Glenn illuminates the debate surrounding educational freedom and a State-controlled model. 'School Choice' is one of the most hotly debated topics in educational policy. International comparison makes it possible to gain perspective on the issue, and this book profiles - historically and in current policies - two countries which give most support to parental choice (The Netherlands and Belgium) and two others which maintain a strong State role in controlling education (Germany and Austria). Charles L. Glenn has read extensively in Dutch, French, and German sources, and brings to his analysis several decades of experience as a government official in education. By comparing the Dutch model of educational freedom with the similar though distinct Belgian model, and contrasting it with the German and Austrian models - showing how these differences took shape in the 19th century and persist today - Glenn illuminates the policies behind these models, and clearly lays out what we can learn from their strengths and weaknesses. This is essential reading for policy specialists concerned with models of school autonomy versus government control, and the debates over parental choice of schools. . . .
By the way, if you don't own his "Myth of the Common School", you are really missing out. I love the original cover:
Relevant, I think, to the conversation about the Court's decision to weigh in on the ministerial exception's foundations and content is this post, by Aidan O'Neill, at the U.K. Human Rights Blog. Commenting on the (to me) striking refusal of many in the U.K. to distinguish invidious discrimination from religious exercise, O'Neill observes:
[T]he application of the norms of anti-discrimination law, even in the face of religious based conscientious objection, is interpreted by the new religious Dissenters as the State’s imposition of a required outward conformity to a new form of religious settlement: no longer Anglicanism, but a secularism which would banish religiously motivated action from the public square and confine religious belief wholly to the internal forum. . . .
Here's Prof. John Witte (Emory), writing about the recent Lautsi decision, at Huffington Post. A bit:
The Lautsi case echoes many familiar arguments that the United States Supreme Court has used over the past three decades to maintain traditional displays of crèches, crosses and Decalogues on government property. While not entirely convergent in their religious symbolism cases, the American and European high courts now hold six teachings in common. . . .
And . . . what, did you think he wouldn't write about this? . . . here's Stanley Fish:
In these columns I have often remarked that religion-clause jurisprudence is characterized by contortions that would be the envy of Houdini. But nothing in American jurisprudence is as contorted in its reasoning as a recent decision . . . by the European Court of Human Rights. . . .
As a college freshman, I remember lecturing my southern roommate about his region's race problem -- as only an 18 year-old who grew up in the predominantly white Chicago suburbs could do -- and he responded by asking how many blacks went to my high school. Well, not many at all, a phenomenon underscored by this interesting (and depressing) slide show of the ten most racially segregated metro areas in the country based on new census data. I don't have any easy solutions to offer, but especially in light of how much time I've spent recently with Martin Luther King Jr.'s body of work regarding the "beloved community," the pervasiveness of segregation is lamentable. It is difficult to live in solidarity with "the other" when "the other" is largely out of sight.
That's the speculation in this Washington Post article. The article praises Judge Kozinski's opinion in the Alvarez case as an "entertaining treatise." I thought, rather, that Kozinski's opinion was one of the more depressing judicial opinions I've read in some time. Kozinski states--"Saints may always tell the truth, but for mortals living means lying." I don't think Judge Kozinski knows much about saints. Saints are persons who have sinned, just as the rest of us do. But they were able to live lives of great holiness, maybe because they recognized when they failed.
In contrast, Kozinski's opinion seems to celebrate our moral failings. Maybe that's just because he's trying for the quotable rhetorical flourish. But the tenor of the opinion seems to reflect the judge's deeply held beliefs. (Strangely, the opinion contains an offhand critique of the First Amendment law on pornography.) He maintains that "white lies, exaggerations, and deceptions ..are an integral part of human existence." This doesn't seem just a factual recognition of our fallen natures. This seems to reflect his view that untruthful speech is valuable for its own sake, because of its essential role in "human self-expression" and the pursuit of "personal autonomy."
A number of us have commented on the life and work of Bill Stuntz, and I would like to offer my own reflection. Bill was a professor at Virginia while I was there in law school. As a Catholic student I was involved both in the Catholic student organization and the Law Christian Fellowship. As a faculty advisor, it was important to Bill that LCF be ecumenical and inclusive, which is one of the reasons I felt so welcomed. I found a home there and even served as president of the organization. As a mentor, Bill challenged me to think critically about scripture, the law, and my own tradition. Perhaps more importantly, he encouraged me to be attentive to the Holy Spirit working in my life and to be completely authentic, as he strove to be. I am sad that we have lost Bill, but I am thankful for his work and his example of faithful integrity.
Thanks to Rick and company for including me. I first came across Mirror of Justice when I was a young associate at Williams & Connolly and have followed it ever since, so it's a delight to be part of the discussion finally. As Rick mentioned, I regularly teach at Villanova, but I'm spending the current academic year as the Forbes Visiting Fellow in the James Madison Program in the Politics Department at Princeton University.
Speaking of which, Jeremy Waldron is with us for several days delivering the Madison Program's Charles Test Lectures, and his topic is religion and the foundations of international law. (Details here.) I'm an admirer of Waldron's earlier book on the foundations of equality in Locke and his recent work on public reason and religion, and these lectures look to be extending a broadly similar and exciting argument to international law. Stay tuned.
