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Exclusionary Rule Back On the Chopping Block

[ 12 ] February 20, 2008 |

I cringe whenever I see that the Roberts Court is taking a case like this:

In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

As Greenhouse points out, the disdain expressed for the exclusionary rule in the Hudson decision last year, which in yet another manifestation of the War On (Some Classes of People Who Use Some) Drugs being where civil liberties go to die refused to apply the exclusionary rule to illegal “no-knock” searches, makes clear that this decision is unlikely to be favorable to the protection of civil liberties. The Rehnquist Court has already held that — for no remotely convincing reason — the exclusionary rule shouldn’t be applied when the illegality was the result of a bad warrant rather than directly illegal police behavior. It seems pretty obvious that an even more reactionary court that illegal behavior by one branch of the police won’t require evidence obtained by other police officers as the result of the illegality to be suppressed. The fake-minimalist Roberts Court won’t overturn the exclusionary rule, just continue to gut it.

I explained last year why I think reducing the exclusionary rule to an empty shell is a bad thing. To repeat, “[w]hen Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join” opponents of the exclusionary rule, but until then it’s the best remedy available. And it’s misleading to claim that the rule can’t benefit innocent victims; this is true in individual cases, but the larger effect of the exclusionary rule is to encourage professionalism and legality by the state by removing incentives to violate rights. The trend of the Rehnquist and Roberts Courts making it clear that the police can usually find a way to get illegally obtained evidence admitted creates the opposite incentives.

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NYC Subway Searches – As Racist as You Thought.

[ 13 ] February 20, 2008 |


As someone who rides the NYC Subway daily, I’m happy for the system to be as safe as possible. But I’ve been ambivalent about the subway bag searches from the beginning. And my skepticism was only heightened (deepened?) today with the publication of a study about the subway searches showing that 88% of the people stopped are Black or Latino, even though less than half of subway riders are Black or Latino.

Nice to know the “random” searches are working so…randomly.

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Blooks?

[ 7 ] February 20, 2008 |

From Sewell Chan at City Room, we learn that Random House has published Ultimate Blogs, a collection of online work which “aspires to be a sort of Norton Anthology of Blogging, with excerpts from 27 blogs, 9 of them by people living in New York City.” I don’t know if I should feel like an under-informed loser or an over-informed loser, but I’m familiar with eight of the blogs on the list.

  • Cosmic Variance, a blog by Sean Carroll, a theoretical physicist at Caltech.
  • Diary of Samuel Pepys, a blog that is run by the Web designer Phil Gyford and consists solely of entries from the renowned diaries of the 17th-century Londoner Samuel Pepys.
  • Get Your War On, a popular animated series about the war on terrorism by David Rees, which is published online and in Rolling Stone magazine.
  • A celebrity fashion blog by Heather Cocks and Jessica Morgan. (The name of the blog is just this side of unprintable, at least for The New York Times.)
  • I Blame the Patriarchy, a blog by Jill Posey-Smith, who “describes herself as a queer pro-choice atheist and aesthete” in Texas, according to the book.
  • Language Log, a group blog founded by two linguists, Mark Liberman of the University of Pennsylvania and Geoffrey Pullum of the University of California at Santa Cruz, where Benjamin Zimmer, a linguistic anthropologist, is a regular contributor.
  • Matthew Yglesias, an associate editor of The Atlantic.
  • The Smoking Gun, a renowned Web site, founded in 1997, which published documents obtained through Freedom of Information laws.

Great stuff there, but I can’t imagine why The Smoking Gun would have been included in this collection, unless the editor decided to reprint The Falafel Papers. And while the Pepys diary is a fascinating read, at the end of the day it’s often just another blog about beating your child and trying to lay the maid.

All that aside, I can’t believe Sewell Chan witheld props from Ben Domenech, who pioneered the blog-to-book format nearly two years ago with his “literary journal” The Critical (a venture which is, I am sad to report, officially toe-up.) True, The Critical was cobbled together from P.J. O’Rourke jokes and inspirational monologues from Red Dawn, but its advisory editors included Hugh Hewitt and Adam Bellow, so you know it had to be good.

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Dear Sweet God, This is My Life

[ 23 ] February 20, 2008 |

I never, ever, ever again want to get locked in nine hour comment thread battle over the Florida and Michigan delegates; it is bad for my soul, leads to acne, prevents me from getting tenure, etc. I guess that I want Obama to win Texas and Ohio on the merits, but I also really, really want him to win so that this will be over; not for unity, not for the sake of the party, but simply because I want my afternoons and evenings and late nights back.

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Air Force Continues to Make My Case

[ 34 ] February 20, 2008 |

The USAF has been pissing off a lot of people lately.

The first problem is the F-22. The Air Force insists that it needs a lot of them. Congress, footing the bill, isn’t so sure. The Air Force has at least half of a case on this. It’s true enough that the F-22 is useless in our current wars, but utility in Iraq and Afghanistan is not the sole criteria of weapon merit. Moreover, there’s something to the Air Force complaints that the F-15 fleet is getting old and uncompetitive. The F-15 is still one of the best platforms in the world, but the age and wear on a lot of the frames means higher maintenance costs and lower readiness rates. Finally, in a perfect world you really would want what’s probably the best air superiority fighter around, even if you can’t predict precisely when and where it’s going to be used.

But of course we live in the real world, and while utility now isn’t the only criterion, it is a pretty important one. It’s unclear why we need the F-22 now in the numbers that the Air Force wants. It’s also unclear why procurement right now should favor the Air Force instead of the Army. The F-35 seems to me to be a much preferable option; it has ground attack and air superiority capability, it’s being developed with a number of other countries, and it has variants that the United States Navy and several foreign navies want. It’s almost as if the Air Force wants the F-22 simply because other countries won’t have it; this makes a tiny bit of sense, but not a terribly large amount, because we’re not going to war against Norway anytime soon. I’m pretty convinced that the F-22 is attractive to the Air Force for prestige reasons; it wants the aircraft simply in order to have a plane that’s more air superiority capable than anything the Air Force has. This amounts to essentially a cultural argument, as the fighter faction in the USAF has always been strong, if not necessarily dominant.

What’s really interesting is that as fewer people take the Air Force seriously, it seems to up its demands. AP:

The Air Force isn’t alone in wanting more money, but its appetite is far greater than the other military branches. Shortly after President Bush submitted his defense plan for the 2009 budget year, which begins Oct. 1, each service outlined for Congress what it felt was left out. The Air Force’s “wish list” totaled $18.8 billion, almost twice as much as the other three services combined.

“There’s no justification for it. Period. End of story,” said Gordon Adams, a former Clinton administration budget official who specializes in defense issues. “Until someone constrains these budget requests, the hunger for more will charge ahead unchecked.”

The intriguing thing about this is the resentment it seems to be stirring. The Navy is also requesting weapon systems that have no direct utility in Afghanistan or Iraq, but apparently it either has a better PR department or a better sense of when and when not to push. It can’t help that the Air Force has decided to treat the Army and Navy as enemies in the procurement battle, or that the USAF has been, well, quite blunt in the demands that it’s making. After General Bruce Carlson publicly stated that the Air Force wanted 380 F-22s (double the current fleet projection), SecDef Gates slapped him down pretty hard.

All of General Dunlap’s claims regarding the critical role of the Air Force in counterinsurgency can’t change the fact that it’s not a service built for the kind of war we’re fighting now. Moreover, the jobs that the Air Force is being asked to do now (ground support, transport, etc.) are things that it has bitterly resisted doing at every opportunity. Whereas the Navy has done a lot of good work on laying a theoretical and doctrinal foundation for its continued prominence, the Air Force seems capable only of clawing at the other two services.

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Lousy Miscegenating Communists

[ 14 ] February 20, 2008 |

Skemono has a fine post on the communism-miscegenation connection. A taste:

In 1957 the Citizens’ Council serialized a “Manual for Southerners” which included this bit of rhetoric:

Our most famous Americans have believed in segregation. Do you think they did not go to heaven because Race-Mixers had not made them integrate? The people of the United States have always practiced Segregation. And their preachers did not believe they were sinful. Why is it suddenly sinful for us Americans to want to keep Segregation? If God believed in pure races, can’t we believe in pure races, too? Or should we believe the Communist Race-Mixers? They do not believe in God at all.

Read the whole thing etc.

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Wisconsin

[ 28 ] February 20, 2008 |

Obama with a convincing win. But it doesn’t count because it’s a caucus there are too many black people there aren’t enough black people the state is too small. Now, if he wins a state with one candidate on the ballot and no campaign, then he might have something. Also, I have been informed that unlike most politicians he — and I don’t mean to shock you — does not personally write all of his own material. It’s only a matter of time before this crucial issue catches up to him.

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Um, No.

[ 26 ] February 19, 2008 |

What is it about the chemistry of the birth control pill that the wingnuts don’t understand?

There’s news today that lawmakers in Missouri are trying to get emergency contraception (aka Plan B) classified as a drug that induces abortion. The proposed law would also (or perhaps principally) provide protection for moralizing pharmacists who don’t want to do their jobs and who refuse to distribute EC.

Crap like this makes me want to bang my head against a wall. It has been proven again and again that EC is not an abortifacient. It either prevents the implantation of a fertilized egg or, like plain vanilla birth control, prevents the release of an egg to begin with. And yes, I know, there are some people out there who will argue that if an egg is fertilized, anything that prevents the continuation of a pregnancy produces an abortion. But (1) technically, pregnancy doesn’t even begin until the embryo implants and starts to generate the hormones that sustain a pregnancy and (2) lest we forget, about 1/2 of fertilized eggs don’t implant anyway.

Also, proposals like this make it achingly clear that the wingnut anti-woman/anti-abortion movement has almost zero to do with protecting life and almost everything to do with ensuring that women don’t have control over their reproductive lives.

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The Summers Principle, In Graphic Form

[ 0 ] February 19, 2008 |

Indeed:

Photobucket

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Clinton Rules

[ 24 ] February 19, 2008 |

Dr. Black:

I wonder when Politico will give us the “scoop” that Clinton is planning to hire the hit man who killed Vince Foster to take out all of Obama’s delegates.

As has been established at interminable length, I”m more than willing to point out actual examples of dirty tactics or incompetence from the Clinton campaign, but progressives really should be careful before accepting the truth of anonymously sourced articles in Drudgico.

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The Federalism Dodge In Historical Perspective

[ 9 ] February 19, 2008 |

Dave’s post on Confederate nostalgia premised on an imaginary commitment to “States’ Rights” reminds me that one reason why John Marshall Harlan’s dissent in the Civil Rights Cases is one of my very favorite in the U.S. Reports is that he not only anticipated the bogus “special rights” argument but in contrasting the Court upholding the Fugitive Slave Acts and striking down the Civil Rights Act was also an incisive critic of the federalism dodge:

With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that — under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship — it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Amazingly, the same faction that seceded in 1861 strongly favored the Fugitive Slave Act in 1850, although the wording of the Fugitive Slave clause and its placement in Article IV rather than Article I suggests that the rendition of fugitive slaves was a state rather than federal responsibility. (An argument can be made for the constitutionality of the law, but it certainly wouldn’t be made by someone with a serious commitment to narrow federal power.) And this was part of a completely consistent pattern. Mark Graber’s recent book is good on this, but until demographics shifted in favor of the free states most Southerners were advocates of strong federal power — John Calhoun started as a nationalist, Jefferson may have been tortured by the Louisiana Purchase but most of his supporters weren’t (and even he went ahead with it), and so on. The relevant principle the slaveholding states adhered to is straightforward: the protection of human bondage. When the federal government advanced the interests of slaveholders, they advocated strong federal powers; when the federal government didn’t advance those interests, all of a sudden the rights of the states were paramount.

And, of course, has been consistent from Reconstruction onward as well. Pro-apartheid Southerners who claimed that Brown v. Board was an outrageous arrogation of federal power generally didn’t object to the Tennessee Valley Authority, constitutionally dubious federal persecution of communists, federal spending programs as long as most of the benefits went to white people, etc. Almost everybody who purports to want abortion “sent back to the states” favors every federal abortion regulation to come down the pike. And so on. “Federalism” has never been an especially important independent factor in American politics; much more commonly, it’s a way of advancing substantive claims you’d rather not defend on the merits.

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Abortion At Issue in Italy

[ 2 ] February 19, 2008 |

Is this what we’re heading toward here in the U.S.? In Naples last week, police stormed into a hospital based on an anonymous tip that doctors there had performed an abortion later than 24 weeks (the latest date allowed under the country’s 30-year-old abortion law). From the NY Times:

[P]olice officers entered the hospital and interrogated a Neapolitan woman, identified in the news media only by her first name, Silvana, immediately after the abortion and reportedly while she was still under the effects of anesthesia. They seized the aborted fetus.

Carmine Nappi, the chief of obstetrics at the hospital, likened the police intrusion to an anti-Mafia raid. “We’ve had countless complaints, we’re a hospital, but never a blitz like this,” he said by telephone on Thursday.

Nice one. Of course, tests proved that the fetus was 21 weeks gestational age, and that the woman had chosen to terminate the pregnancy based on tests that showed a serious fetal abnormality.

This “anti-mafia” style raid comes in the context of a new attack on the country’s abortion law. With the parliament dissolved and elections looming, conservative leaders are using abortion as a tool to mobilize voters. To Americans familiar with the elections of 2000 and 2004, this is nothing new: the right here has for a while now made contentious social issues loom large in order to scare voters (particularly religious conservatives) to the polls.

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