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The Exclusionary Rule In Comparative Perspective

[ 0 ] July 21, 2008 |

Adam Liptak has an interesting article about the exclusionary rule and how the American use of the rule differs from other countries. He begins with a comparison to Canada, which requires that evidence obtained in an illegal search be excluded only if admitting the evidence would cause greater harm to the integrity of the justice system then excluding it would. On its face, this seems unexceptionable, but of course this kind of balancing test is only as good as the judge applying it. Interestingly, the case Liptak cites — which involved the admission of cocaine found in a search the trial judge conceded was unconstitutional — is not a very attractive one. I could accept the Canadian rule if it developed in a way that gave deference to the state when it comes to violent offenses but almost always excluded evidence in cases such as The War On (Some Classes of People Who Use Some) Drugs, which have both a strong tendency toward promoting unconstitutional police behavior and whose social benefits are much less clear. It will be interesting to see how the Supreme Court of Canada rules.

One puzzle I have with the article is that I’m not sure how meaningful it is to claim that Canada has “balancing” with respect to the exclusionary rule but the United States does not. As Liptak mentions towards the end, the Supreme Court has developed various exceptions to the exclusionary rule: inevitable discovery, “good faith,” 2006’s “no knock” exception. Perhaps the balancing in the United States is more tilted towards defendants, but I don’t think that it makes much sense to discuss a “mandatory” American exclusionary rule; judges have plenty of tools to admit evidence they feel should be admitted. It’s also highly unlikely that a judge’s perception of whether excluding the evidence would affect the integrity of the justice system is irrelevant to her considerations about whether evidence should be excluded (or, for that matter, about whether a search is “reasonable); it’s just more explicit in the Canadian case.

I’ve discussed the question of whether a strong exclusionary rule makes sense before — in the actually existing political circumstances of the United States, I favor it. One thing to add, though, is that American exceptionalism in terms of formal civil liberties has to be considered alongside American exceptionalism in terms of the harshness of punishment (both in terms of the time people convicted of various crimes spend in jail, how often they’re convicted, and the economic and social consequences of having been in prison.) It’s hard to argue that the overall balance in the United States is excessively tilted in favor of the individual against the state.


Dog Bites Man II

[ 12 ] July 21, 2008 |

The CENTCOM non-denial-denial came only after a call from the U.S. government:

The statement by an aide to Iraqi Prime Minister Nouri al-Maliki calling his remarks in Der Spiegel “misinterpreted and mistranslated” followed a call to the prime minister’s office from U.S. government officials in Iraq.

Maliki had expressed support for a withdrawal plan similar to that of presumptive Democratic presidential nominee Barack Obama in an interview with Der Speigel. U.S. troops should leave Iraq “As soon as possible, as far as we’re concerned,” Maliki had said. “U.S. presidential candidate Barack Obama talks about 16 months. That, we think, would be the right timeframe for a withdrawal, with the possibility of slight changes.”

As for the feeble content of the response, Ben Smith states the obvious:

It’s almost a convention of politics that when a politician says he was misquoted, but doesn’t detail the misquote or offer an alternative, he’s really saying he wishes he hadn’t said what he did, or that he needs to issue a pro-forma denial to please someone.

The Iraqi Prime Minister’s vague denial seems to fall in that category. The fact that it arrived to the American press via CENTCOM, seems to support that. It came, as Mike Allen notes, 18 hours later, and at 1:30 a.m. Eastern, a little late for Sunday papers; his staff also seems, Der Spiegel reports, not to have contested Iraqi reporting of the quote, even in the “government-affiliated” Iraqi press.

Obviously, unless CENTCOM can actually some specific examples of mistranslation or why they’re irrelevant, the follow-up shouldn’t be considered a “retraction” in any sense at all. And that story that still stands should be considered extremely important.

Today In Dog-Bites-Man News

[ 9 ] July 21, 2008 |

From an excellent NYT article about a woman buried under a mountain of debt following the dissolution of her marriage, loss of job, and large medical expenses, this shocking news about the bankruptcy bill disgracefully passed by Congress:

Not surprisingly, such practices generated dazzling profits for the nation’s financial companies. And since 2005, when the bankruptcy law was changed, the credit card industry has increased its earnings 25 percent, according to a new study by Michael Simkovic, a former James M. Olin fellow in Law and Economics at Harvard Law School.

The “2005 bankruptcy reform benefited credit card companies and hurt their customers,” Mr. Simkovic concluded in his study. He said that even though sponsors of the bankruptcy bill promised that consumers would benefit from lower borrowing costs as delinquent borrowers were held more accountable, the cost of borrowing from credit card companies has actually increased anywhere from 5 percent to 17 percent.

Why, it’s almost enough to make me think that the bill was a gift to already-flush credit card companies with no benefits to the consumer at all!

More on the general subject from Slacktivist.

…a commenter finds this from Richard Posner, which holds up about as well as his defense of Bush v. Gore.

Best Burgers?

[ 0 ] July 21, 2008 |

Alan Richman picks the best burgers in New York. Alas, I’ve never been to the first four and have never been to Peter Luger for lunch. (I already waste too much time at the gym for it to be more than a special treat.) The best one I’ve had so far has been at Rare, which was fantastic. I know bean and mr. bean strongly endorse the Corner Bistro, which I’ve never visited either. But leave suggestions/arguments about New York or any other city…

The Ongoing Integrity Of "Compassionate Conservatism"

[ 3 ] July 19, 2008 |

Shorter Michael Gerson: The blame for the consequences of global warming must be put on people who support measures to curb it, not people who reflexively oppose any solution when they don’t simply deny its existence.

The Backlash Continues!

[ 0 ] July 18, 2008 |

Hysterical predictions aside, Kevin Drum notes that the initiative to overturn the pro-gay-marriage ruling of the California Courts is trailing by nine points. I don’t want to be complacent — things can change — but it is very likely that Prop 8 will fail, and California’s same-sex marriages will be entrenched. Alas, I fear that Kevin is excessively optimistic when he says that “gay marriage will have been approved by the courts, the governor, the legislature, and the public. There’s no way anyone will be able to complain that it’s anything but completely legitimate.” As far is I can tell, many of the people obsessed with “backlash” have no coherent democratic theory except that any social change that makes them or any significant number of people uncomfortable is ipso facto illegitimate.

In other backlash news, Massachusetts state legislators so outraged about judicial usurpation that almost 25% of them voted to throw the question to a referendum voted this week to repeal “a 1913 law that prevents Massachusetts from marrying out-of-state couples if their marriages would not be legal in their home states.” Fittingly enough, the law had its roots in white supremacy, was exhumed in pursuit of similarly bigoted purposes by Mitt Romney, and richly deserves its place in the dustbin of history.

Pro-Torture Contrarianism

[ 27 ] July 18, 2008 |

Who else but Stuart Taylor? His argument seems to be that the best remedy for illegal acts of torture is to assure that (apart from some isolated low-level “bad apple” scapegoats) nobody is held responsible for them:

It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn’t allow them to be prosecuted anyway—galling as that may be to critics.) The reason for pardons is simple: what this country needs most is a full and true accounting of what took place. The incoming president should convene a truth commission, with subpoena power, to explore every possible misdeed and derive lessons from it. But this should not be a criminal investigation, which would only force officials to hire lawyers and batten down the hatches.


Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent.

There’s an obvious contradiction here: if there’s a great deal we don’t know, how can we be sure that nobody aced with “criminal intent?” Wouldn’t individual immunity deals, which don’t require that assumption, be preferable to blanket pardons? But more importantly, if a legal opinion from DOJ lawyers (with the collaboration of their superiors) asserting that illegal and arbitrary actions are in fact legal is all that’s necessary to avoid legal accountability for any administration member, any subsequent attempt to prevent similar abuses is a waste of time.

The key here is what Taylor identifies as the key goals of the “Truth Commission” he envisions:

Pardons would further a truth commission’s most important goals: to uncover all important facts, identify innocent victims to be compensated, foster a serious conversation about what U.S. interrogation rules should be, recommend legal reforms, pave the way for appropriate apologies and restore America’s good name. The goals should not include wrecking the lives of men and women who made grievous mistakes while doing dirty work—work they had been advised by administration lawyers was legal, and which they believed was necessary to prevent terrorist mass murder.

A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies.

I have to concede that if you consider it an important priority that people responsible for arbitrary torture policies “apologize” and that we have a Very Serious “conversation” about torture, then pardons are a good strategy. If you take my view that preventing future arbitrary torture is an infinitely higher priority than people saying they’re sorry, you’re likely to think that justice and accountability are more important. All the best-conceived “legal reforms” in the world will mean absolutely nothing if a DOJ opinion can be expected to immunize virtually any action approved by an executive branch official as long as it can somehow be linked to the “dirty work” of the War on Terror.

Great Moments In High Contrarianism

[ 0 ] July 18, 2008 |

I guess it’s time to go back to this from Ben Wittes:

I know what you’re thinking: If they confirm Mukasey without answers, the Democrats will once again be caving and letting the administration escape accountability. But the Democrats actually don’t have to cave here. They just have to wait a few weeks. While Mukasey cannot answer these questions before confirmation, that inability will not persist long once he takes the reins of the Justice Department. Senators can make clear that they will let him take office but will also expect him back before the Judiciary Committee within two months of his accession to address questions of coercive interrogation, that they will expect answers far more straightforward and candid than they got from his predecessor, and that they will demand these answers–to the maximum extent possible–in public session.

The Democrats have a big club to wield over Mukasey’s head to make sure they don’t get snookered: Without a strong working relationship with them, he won’t be able to get anything done. The lack of such a relationship gravely impaired both of his predecessors, albeit for different reasons. And, with only a year to serve in office, Mukasey’s clock will tick loudly from the start.

So how has the massive leverage resulting from the bizarre assumption that Mukasey would want to accomplish goals in tandem with congressional Democrats worked out?

Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.

Mukasey may have a better reputation than Gonzales, but it turns out he is just as willing to use his power to protect the White House from embarrassing revelations.

The House Oversight and Government Reform Committee had subpoenaed Mukasey to turn over, among other documents, a report on Vice President Cheney’s interview with FBI agents investigating the leak of covert CIA operative Valerie Plame’s identity.

In a move that was mutually self-serving, Bush yesterday — on Mukasey’s urging — made what may be his most audacious assertion yet of executive privilege.

Congress’s legitimate oversight interests aside, common sense suggests Cheney waived executive privilege when he voluntarily agreed to speak to FBI agents. But Mukasey countered that with a novel argument: “I am concerned about the subpoena’s impact on White House cooperation with future Justice Department criminal investigations,” he wrote in his Tuesday letter to Bush, asking to be ordered not to comply with the subpoena.

How utterly shocking! Who could ever have anticipated that Mukasey didn’t actually need Cobgressional Democrats to accomplish his inevitable goals of obstructionism in the service of executive power?

How To Write Satire

[ 34 ] July 18, 2008 |

Tom Tomorrow explains.

Nixon’s Piano

[ 0 ] July 17, 2008 |

Jesse and David say most of what needs to be said about Bruce Bartlett’s op-ed, but it’s worth saying more about one specific point. The central problem with Bartlett’s argument is its triviality and irrelevance: it’s indisputable that in the immediate wake of the Civil War and for several decades afterward the Republican Party was better on civil rights, but since this this is widely known and says nothing about contemporary politics, who cares? Presumably recognizing that persuading African-Americans to vote for people who have been dead for decades and wouldn’t be Republicans if they were alive is not a viable approach for the GOP, Bartlett tries a more recent example and the tendentiousness becomes embarrassing:

Richard Nixon is said to have developed a “Southern strategy” of using racial code words like “law and order” to gain votes in the South. Yet he did more to desegregate southern schools than any president in history.

It’s true that, because the late 60s was the high water mark of strong anti-desegregation opinions in the federal courts (led by the precedents created by the Warren Court that Nixon campaigned against) and there were a lot of holdover pro-civil rights lawyers in the DOJ, that a significant amount of desegregation took place in Nixon’s initial years in office. To claim that Nixon was responsible for this desegregation, however, requires evidence that he supported these policies and attempted to continue them. Needless to say, nothing of the sort is true. (As the fact that he appointed William Rehnquist and unsuccessfully nominated two Southern judges with segregationist histories to the Supreme Court indicates.)

As Rick Perlstein notes in Nixonland, the Nixon administration broke with previous administrations and started filing briefs against desegregation plans. Nixon’s reaction to the Swann decision (p. 604) lays out the basic strategy: talk about how the Courts have tied your hands in public, peel off Southern Democrats, and then appoint reactionary judges who will stop applying Brown aggressively.

And, of course, when Nixon got his appointments on the Supreme Court, this is what happened. In two landmark decisions with Nixon’s appointees providing 4 of the 5 votes, the Supreme Court effectively held that school systems could be separate and unequal as long as this was accomplished through tax policy and and the arbitrary drawing of district boundaries rather than through direct pupil assignment. To give Nixon credit for the desegregation policies he opposed is grossly ahistorical nonsense.

Ambiguity Is Not the Problem

[ 52 ] July 17, 2008 |

Dahlia Lithwick on the new War Powers Commission and the new FISA revisions:

Our war-powers problems lie not so much in the failure of checks and balances, but in the fact that Congress is invariably comfortable opposing wars only in hindsight. This might explain the fact that Congress’ popularity ratings dipped into the single digits last week. It doesn’t change the fact that you can’t amend a statute that tried to get Congress to consult, with another statute that tries to get Congress to consult more. In a statement last week, even Warren Christopher conceded that “it comes down to questions of congressional will … to resist funding or to limit it. …. [T]here is nothing we can do by statute that will change that.”

This leads to the second mistaken premise behind the War Powers Commission: Baker and Christopher’s bipartisan belief that the core failure of the War Powers Act lies in its poorly drafted, ambiguous language. Consider last week’s Senate vote to amend the Foreign Intelligence Surveillance Act—the 1978 wiretapping law that made one guilty of a felony if one “engages in electronic surveillance under color of law except as authorized by statute.” That language is perfectly clear and unambiguous. Indeed, it’s so clear and unambiguous that last week a federal judge had no trouble determining that President Bush had violated it.

And yet last week the Senate voted to clarify FISA again. So, now the same electronic surveillance that was illegal when the president did it six years ago will be really, really illegal. Except when it’s not. The hope appears to be that this time, the president will abide by the law because it’s clearly written. But the problem with FISA was never that it was poorly or ambiguously drafted. The problem was with an overreaching executive that disregards crystal-clear, and also ambiguous, laws in about equal measure. I am hardly holding up the War Powers Act as a model of perfect clarity. But it already had consultation and reporting provisions, and yet nobody saw fit to consult or report. So, let’s stop blaming ambiguous torture, wiretapping, and war-declaring laws for our current situation. Let’s call executive overreaching what it is.

And needless to say, the circumstances of the passage of the new FISA legislation and the fact that Congress gave away the show makes is pretty clear that tougher oversight to ensure that the White House is hewing to the new, looser guidelines is unlikely to be forthcoming.

Posner and Vermeule make a similar point in their recent book, arguing all-too-convincingly that attempts to strengthen congressional power versus the executive when anything that can be defined as war powers are concerned are highly unlikely to work. Since their normative claim that this is a good thing is far less persuasive, it’s a depressing read.

"Pro Life": It Means More Unwanted Pregnancies

[ 14 ] July 16, 2008 |

The Bush administration signs on to the idea that it’s an act of High Principle to get paid when you’re not willing to do your job, and it’s desirable for people to use their state-granted gatekeeping authority to obstruct women’s access to health care. Indeed, these things need to be protected by law, even if this involves ludicrously redefining various forms of birth control as “abortion.”

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