Thursday, July 9, 2015

What is the law?

Many think that law is simply a clearly written statement of what is or what is not allowed. Many children are brought up by parents who state the rules their children must follow, and that’s that. Their model for law is, perhaps, the Ten Commandments, where the rules are a matter of black and white, purportedly handed down from God. The child is not to question the rules themselves. They mean what the parents say they mean.

Laws in the real world are not like that. They contain words that are subject to interpretation. Even a simple word like “or” has at least two meanings. “A or B” can mean “A or B but not both” or “A or B or both.” When a logician was asked if the baby his wife had just had was a boy or a girl, he replied, correctly, “Yes.”

Over many centuries judges have had to interpret the meaning of laws full of words subject to interpretation. Some of these laws are lengthy statutes consisting of thousands of words. The courts have developed rules of construction to help them in their tasks. These rules themselves are subject to interpretation, but the rules can be applied to themselves to understand what they mean. This world of interpretation, thus, is not black and white but varying shades of grey. Those raised in the artificial environment of black and white rules are uncomfortable with the more difficult reality of grey.

While I know nothing of the child rearing of Boston Globe columnist Jeff Jacoby, his recent editorial criticizing the U.S. Supreme Court’s decision that effectively upheld a key component of what is popularly known as “Obamacare” reflects this desire to live in the artificial world of black and white. He stated in his editorial, “Since the law explicitly restricts subsidies to ‘an exchange established by the state,’ the answer should be obvious. . . . [Justice Roberts] turned the straightforward meaning on its head. ‘An exchange established by the state,' he wrote, also means an exchange not established by the state.” Jacoby concluded, “The rule of law . . . is corroded by judges who act like superlegislators — never more so than when torturing the plain words of the law, forcing them to say what they don’t mean.”

In response, I wrote a letter to the editor which was published by the Globe (online on July 8, 2015, and in print the following day). This is the letter:

Courts must look at statute as a whole

JEFF JACOBY ignored one of the fundamental principles of statutory interpretation when he concluded that the Supreme Court distorted the law in the Obamacare subsidy case, King v. Burwell (“Torturing the law,” Opinion, July 2). This principle, often repeated, is that courts must interpret or construe statutes by looking at the statute as a whole and not in isolated parts. The principle, also known as a rule of construction, empowers courts to disregard single sentences if they conflict with the purpose and intent of the whole statute.

The purpose of this rule is to give effect to legislation, not to override it. It is Jacoby who ignores this rule when he simplistically concludes that it is the Supreme Court that ignored the law.

John L. Hodge, Jamaica Plain
The writer is a retired lawyer.

Monday, June 8, 2015

Do Non-American Lives Matter?

In April we learned three months after the event that an American drone strike in Pakistan inadvertently killed Warren Weinstein, an American held as a hostage in Pakistan. President Obama made a public apology, stating “I profoundly regret what happened. On behalf of the United States government, I offer our deepest apologies to the families.”  (“American killed by US drone in Pakistan,”, April 24, 2015.)
Unfortunately this was not the only innocent person killed by drone strikes. An Associated Press article by Sebastian Abbot attempted to make the case that few civilians have been killed by U.S. drones (e.g., “Most killed by US drones are militants, study finds,” Boston Globe, Feb. 26, 2012, p. A3). The article establishes that 30%, meaning “only” 30%, of those killed by drones in Pakistan were civilians or other non-militants. That 30% at that time—over three years ago—amounted to about 56 civilians or other non-militants killed by U.S. drones in Pakistan. The killed included children. Later, on July 22, 2013, the London-based non-profit The Bureau of Investigative Journalism reported that a Pakistani document revealed that “of 746 people listed as killed in the drone strikes . . . at least 147 of the dead . . . are clearly stated to be civilian victims, 94 of those are said to be children.” This is not counting civilians killed by drone strikes in other countries.
The killed civilians were not in a war zone. They were not on a battlefield. They were killed similar to the way Warren Weinstein was killed, inadvertently in an attempt to kill the active perpetrators of violence.
There was no public official apology from President Obama for the death of those innocent Pakistanis.   The reports of these deaths of innocents, when such reports existed at all, were mostly hidden in small articles in back pages, often under reassuring headlines like the one above.
The only conclusion I can draw from this sequence of events is that the United States regards the life of an innocent American far more highly than that of an innocent Pakistani. (Did you make the distinction in your own mind: “Oh, those were not Americans, they were Pakistanis?”)
There has been a persistent national preference for preserving American lives over other innocent lives. The 2003 invasion of Iraq and its aftermath cost several hundred thousands of Iraqi civilian lives, all in the name of advancing democracy and perhaps civilization. Iraqi civilians, including children, were pawns in a global contest for power. Their lives apparently did not matter—
at least not enough to warrant the kind of official regret expressed by the President about Mr. Weinstein.
It should not surprise us, then, that there are people in Pakistan and the Middle East who hate the United States and are resorting to terrorism in an attempt to destroy it. Unfortunately, the behavior of our country towards innocent lives is creating its own enemies. This behavior and the reactions to it cannot but help lead us down the road towards greater conflict and more war, increasing the threat of involvement of those with or developing nuclear weapons.
It should be clear from these events that reflect relative indifference to non-American civilian deaths that we as a nation continue to be headed in the wrong direction.
What can we do to turn our nation around and make it a force for lasting peace? Killing innocent civilians of any nationality in any country is not the way to do it. Regarding civilian deaths as merely collateral damage is not the way to do it. Treating American lives as more important than the lives of non-Americans is not the way to do it.
             What this indifference to non-American civilian lives reveals is a rejection of the values underlying democracy, values that maintain that all people are of equal worth.