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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.

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Empire Forever

[ 0 ] July 21, 2008 |

Shorter Derb:

All of your country are belong to us now.

Verbatim Derb:

We should tell Maliki, loudly and in public, that he owes his job to us, and that further prosecution of our military operations in his country will be conducted with regard only to U.S. interests, as determined in consensus by our established domestic political processes. And if he doesn’t like that, he can go to hell.

God, I am so glad that this incident has caused the right to discard its phony interest in democracy promotion…

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Get Under that Bus, Maliki!

[ 19 ] July 21, 2008 |

Andrew McCarthy on how Maliki is an Iranian stooge and lousy ingrate:

As I’ve mentioned before, Maliki, of the Shiite Dawa Party which opposed the 2003 U.S. invasion of Iraq in the first place, has long-standing ties to Iran and Syria — and has expressed support for Hezbollah. The only thing that surprises me about this story is that anyone is surprised.

Another telling aspect of the Spiegel interview has gotten no attention. Maliki was asked what has calmed the violence in Iraq and responded as follows:

There are many factors, but I see them in the following order. First, there is the political rapprochement we have managed to achieve in central Iraq. This has enabled us, above all, to pull the plug on al-Qaida. Second, there is the progress being made by our security forces. Third, there is the deep sense of abhorrence with which the population has reacted to the atrocities of al-Qaida and the militias. Finally, of course, there is the economic recovery.

Notice: No credit to or thanks for the efforts and sacrifices of the United States and our armed forces, much less the surge. In fact, Maliki’s major observation about American troops, other than that he wants them out of Iraq “as soon as possible,” is that he wants the power to prosecute them for “offences or crimes committed by US soldiers against our population” — a major sticking point in negotiations over a status of forces agreement.

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Reasonable Doubts

[ 38 ] July 21, 2008 |

James Q. Whitman has an interesting new book about the development of the concept of reasonable doubt in the Anglo-American legal system. An odd feature of that system is its quite explicit refusal to produce anything like a formal definition of this supposedly crucial concept. How much doubt equals reasonable doubt? Most jurisdictions in the US forbid judges to give probabilistic instructions to juries when explaining the concept, so they’re limited to very general platitudes about “moral certainty” regarding the defendant’s guilt and so forth.

Needless to say, what constitutes “moral certainty” ends up varying wildly, depending on all sorts of circumstances, some of which have nothing to do with probability and everything to do with things like race, socio-economic status, etc.

The basic problem is that most criminal trials end up adjudicating issues in a gray zone between factual guilt (the defendant actually committed the crime) and legal guilt (it’s possible to assert with some unspecified but extremely high degree of confidence that the defendant committed the crime). A good criminal lawyer walks a tightrope between arguing his or her client is factually innocent and reminding the jury they’re not supposed to convict unless guilt is established “beyond a reasonable doubt.” (For fairly obvious psychological reasons criminal defense lawyers almost never base their arguments on the explicit distinction between factual and legal guilt).

I’ve never been on a criminal jury, but I think I can imagine the enormous pressure people must feel when they’re fairly certain of a defendant’s guilt but still harbor some “reasonable” doubts. Our system deals with that pressure largely through avoidance and denial, by not defining reasonableness in this context, and rarely enquiring into what actually happens inside the black box of the jury room.

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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.

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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.

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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…

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Sunday Book Review: The Sino-Soviet Split

[ 22 ] July 20, 2008 |

Why did the two Communist giants part ways in the early 1960s? Realist explanations have concentrated on the problems associated with two powerful states sharing a long border. Other explanations have focused on the efforts of the United States to drive a wedge between Russia and China. Lorenz Luthi, in The Sino-Soviet Split, makes an argument that isn’t exactly counter-intuitive, but that has probably received less attention than it should; the Sino-Russian alliance split because of genuine ideological disagreements over the past, present, and future of communism. To be sure, this isn’t the whole story, but Luthi makes a compelling case that it’s most of the story.

Perhaps the biggest problem that Luthi encounters in making his case is the person of Mao Zedong. This is a methodological problem as much as anything else; if we assert that ideology caused the split, yet acknowledge that on the Chinese side the problematic ideology was centered in the Chairman and contingent upon his battles against domestic opponents, are we really saying that ideology, instead of Mao or the always popular “domestic considerations” caused the split? Luthi doesn’t fully resolve this question, in part because resolution is impossible; the best we can do is try to convey as much as possible of the tapestry of decision. In this case, Luthi makes a compelling argument that Mao had significant ideological difference both with the Soviets (under both Khruschev and Stalin, but especially the former) and with “rightist” elements of the Chinese Communist Party led by Liu Shaoqi, Deng Xiaoping, and, to a lesser extent, Zhou Enlai. In 1958 and 1959, as the disaster of the Great Leap Forward (which the Soviets had bitterly opposed) became clear, Mao began to use ideological tension with the Soviets to highlight his disagreements with Liu and Deng. Eventually, Mao would intentionally exacerbate the split with the Russians in order to forge an ideological weapon against his enemies in the CCP. The two prongs of this ideological offensive were the battle against “revisionism”, in this case the idea that the through the adoption of a centralized bureaucratic economy the Soviet Union had ceased to be a revolutionary state, and the fight against peaceful coexistence; Mao believed (in public, although his private behavior didn’t match) that the socialist world had the advantage over the capitalist, and that nuclear weapons didn’t transform this calculation. The eventual result of this was the collapse of the alliance on the international side, and the Cultural Revolution on the domestic side.

The Soviets, it seems, were largely confused witnesses to this process. Luthi, who had access to Soviet and Eastern European archives, conveys genuine puzzlement on the part of the Soviets towards the Chinese. The Russians had their own internal political problems (Khruschev’s 1956 speech wasn’t the end of internal conflict against the Stalinists), but these conflicts don’t seem to have engaged in the same kind of synergy with the Sino-Soviet relationship as was present on the Chinese side. This is to say that the various combatants in intra-CPSU disputes didn’t use the relationship with China as a cudgel to beat the other side. Rather, the Soviet appraisal of the behavior of the Chinese Communist Party had two rather stable elements; first, the Russians believed that the Chinese were embarking on a series of economically disastrous policies, and second the Russians believed that the Chinese were far too risk-acceptant in relations with the United States. It could be argued that these are both pragmatic rather than ideological concerns, but I think in particular that the Soviet pursuit of “peaceful coexistence” was driven as much by ideology as by convenience. The Soviet response to Chinese aggressiveness and unorthodoxy was a steadily increasing limitation of military and economic aid, combined with occasional bellicosity in ideological organs (although the Soviet anger never came close to matching the Chinese). The big problem was that the Soviet Union was unable or unwilling to bend on either point, and that the Chinese were completely unapologetic in their attack. In spite of the abject disaster that the Great Leap Forward represented, the Chinese attacked the Soviets as “revisionists” for being unwilling to engage in a similar project, yet no one in the Soviet Union was interested in turning the Soviet economy into a bigger basket case than it already was. Similarly, the Soviet leadership was (generally) reluctant to take a more aggressive tack regarding the United States because it was the USSR, after all, that had to pay the greatest costs of superpower hostility. Finally, the Soviets had to keep the Eastern European parties (generally not sympathetic to the Chinese, with the exception of Albania and the partial exception of Romania) in line, which further limited their ideological flexibility.

Personalities often matter, of course, and both Mao and Khruschev possessed enormous personalities that exacerbated the conflict. Khruschev’s theatricality and general unpredictability was unsettling to the Chinese, who had great difficulty determining whether a particular statement or policy was the result of one of Khruschev’s quirks, or was intentional action of the Soviet state. Of Mao there is little more of use to be said; he was a megalomaniac who was happy to destroy not only the PRC’s most important international alliance, but also its economy and the lives of many of its citizens in pursuit of victory in intra-CCP disputes. The CCP bought this problem for itself, of course, by the decision to promote the Maoist cult of personality, which left the party in a very serious situation when Mao really went off the rails from the late 1950s on. Luthi deals with a few counter-factuals, the most interesting of which is (more or less) “What if Mao had died in 1957?”; it’s hard to conclude from his evidence that both relations between China and Russia, and Chinese domestic policy more generally, would have been much, much different.

Luthi details a couple incidents of near-hilarity that the increasingly tense relationship produced. At a 1964 cocktail party, the drunken Soviet minister of defense Rodion Malinovskii joked to the Chinese delegation “I do not want any Mao and Khruschev to hamper us… we already did away with Khruschev, now you should do away with Mao.” The joke, it is fair to say, didn’t go over well. In 1969, frantic efforts by Soviet Prime Minister Kosygin to reach Zhou Enlai in the midst of a border scrum were frustrated when a Chinese phone operator refused to connect the call, instead preferring to yell at the Prime Minister and accuse him of “revisionism”. And of course I also highly recommend the propaganda pamphlets assembled between 1959 and 1963 by the Soviets, the Chinese, and their proxies; on the Chinese side these include such classics as The Differences Between Comrade Togliatti and Us, Long Live Leninism!, and More on the Differences Between Comrade Togliatti and Us. I plowed through most of these for a senior thesis back in 1997, and the best by far is a slow, patient explanation by the Soviets to the Chinese of how nuclear bombs cannot, when dropped on capitalist cities, distinguish between workers and capitalists.

Although it’s tangential to the question at hand, Luthi also reminds us that the Munich analogy isn’t just for George W. Bush:

It was only after the sudden end of the Cuban Missile Crisis that Chinese propaganda went into full swing. a media campaign denounced the withdrawal as “Munich” and blasted Soviet revisionism for “show[ing] vacillation in a struggle and dar[ing]not to win a victory that can be won.” The Chinese leadership staged mass rallies supporting Cuba’s struggle and accusing the USSR of “adventurism” for sending the missiles and of “capitualationism” for withdrawing them.

The lesson is that every country has its neocons, and that they always, no matter what country they’re from, say the same thing: The enemy only understands force; Negotiation is defeat; Compromise is capitulation; The prestige of our nation/people/movement depends on standing fast. The song remains the same, whether it’s being sung by Bill Kristol, Mao Zedong, or Mahmoud Ahmadinejad.

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Blackmail

[ 33 ] July 19, 2008 |

The NYT has given prominent space to some reckless, uninformed voices in recent months, but there’s little to my recollection that compares with this horrific offering from the Israeli historian Benny Morris, who supplies his readers with a perverse, Strangelovian offer: Join Israel in a massive, conventional attack on Iran, because we’re going to do it anyway regardless of the low odds in our favor; if the US fails to cooperate, the aftermath will be worse for everyone, since Israel will soon enough be forced to use nuclear weapons.

Leave aside the possibility that the “Benny Morris” who wrote this is not the human-animal hybrid offspring of John Bolton and Atlas Shrugs. The fact that Morris suggests that the plan would only work between the November 5 and January 19 — when a lame-duck president would be able to support it — is reason enough to wonder why Morris’ doctors are still allowing him to use sharp dining utensils.

Let’s review that again: Benny Morris, who until recently was properly regarded as one of his country’s finest historians, now believes Israel’s interests will be ably served by yanking its greatest ally along on a mission that a vast majority of Americans citizens would oppose and whose target would be a nuclear weapons program that the CIA believes to be nonexistent and which, even if functioning, could not possibly bear fruit until 2015.

David Kaiser has more on why this is such a disappointing moment for anyone who appreciates Morris’ work.

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It’s Hard Out There for a Kangaroo

[ 0 ] July 19, 2008 |

This had me worried about the kangaroo problem; when we face the onslaught of Svalbard hatched monkey cyborgs, will the kangaroo be at our back, or in our face?

An Australian woman has been saved by a pet dog which leapt to her aid after she was attacked by a large kangaroo, her son has said. The marsupial assaulted Rosemary Neal, 65, at her farm near Mudgee in New South Wales, 265km (160 miles) north-west of Sydney, her son, Darren, said.

“The kangaroo just jumped up and launched straight at her,” he said. “My dog heard her screaming and bolted down and chased him off. If it wasn’t for the dog, she’d probably be dead.”

Terrifying. But then I read this:

A kangaroo met an unlikely death after it bounded into the surf in southern Australia and was mauled by a shark, according to eyewitnesses.

Mr Hurst said he was walking along Torquay beach in Victoria when he saw the marsupial behind scrubland next to the dunes. “It just headed down towards the water and in it went,” he told Australia’s ABC News. “There’s a bit of a rip in that area so… the kangaroo could have been dragged out, but I could still see its head, and that’s when the shark leapt out of the water on its side.

So even if we do face a monkey-cyborg-kangaroo Axis of Evil, we can count on the support of the sharks. This alliance seems well worth the sacrifice of a few swimmers each year; as Churchill said, “if Hitler invaded hell I would make at least a favorable reference to the devil in the House of Commons”. We also know that Shark Nation is willing to do battle with the zombie menace:

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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.

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Stephen’s Shame

[ 4 ] July 19, 2008 |

Stephen Hayes is embarrassed and ashamed. No, not for that. Or that. No, not for that either. No, not really for any of the reasons that Stephen Hayes ought to be embarrassed and ashamed of himself; rather, he’s ashamed that the United States has taken the first positive steps towards dealing with the North Korean and Iranian nuclear programs for the last eight years.

It has been a dispiriting few weeks. Several conservative political appointees have said that they are embarrassed to be working in the Bush administration. One called the new policies “preemptive capitulation.” Another suggested that whatever credit the Bush administration deserved for keeping Americans safe in the seven years after 9/11 would be offset by the blame the administration will have earned for emboldening America’s enemies with its reflexive weakness. And a former adviser to Condoleezza Rice said: “This is stunningly shameful.”

Indeed; it must be depressing when even the slowest professionals in the business conclude that the policy pursued for the last eight years not only “isn’t working”, but indeed is significantly increasing the chance of the negative outcome you want to avoid. I’m also inclined to wonder; does Stephen Hayes prefer US prestige, or a non-nuclear North Korea? For me this isn’t so much of a problem, since I think our ability to negotiate away the North Korean nuclear program is actually an element of national prestige, but for Stephen, not so much. At this point, I’m strongly inclined to believe that Hayes would prefer a world in which both Iran and North Korea had nuclear weapons to one in which the United States negotiated away substantial portions of those programs. It’s insane, yes, but this, after all, was not a sign of a healthy mind.

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