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Tag: "civil liberties"

The New Professionalism

[ 37 ] August 6, 2008 |

In the course of refusing to exclude evidence obtained through an illegal no-knock search in Hudson v. Michigan, Justice Scalia applied that the rule was obsolete:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline.

The logic of this argument (like much of Scalia’s opinion) is dubious. If police forces increased their professionalism in the wake of the requirements established by the Warren Court, including the application of the exclusionary rule to the states, this doesn’t strike me as a good reason to get rid of said requirements.

At any rate, Radley Balko finds an example of the professionalism that allegedly allows the Court to get rid of negative disincentives:

Last week, police stormed Calvo’s home without knocking, shot and killed his two black labs, and questioned him and his mother-in-law at gunpoint over a delivered package of marijuana that police now concede may have been intended for someone else.

The Washington Post reports that the police didn’t even bother to get a no-knock warrant, which means the tactics they used were illegal.

It’s good that the Supreme Court has encouraged this kind of sterling police work!

To add an additional point, it is true (as its critics will point out) that after the fact the exclusionary rule does not provide a remedy in cases where evidence isn’t found. But that doesn’t mean that the innocent derive no benefits from the rule; if the state knows that it can’t use illegally obtained evidence, it has a strong disincentive not to break the law in the first place.


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.

Graphical FISA

[ 1 ] July 12, 2008 |

A useful tool. (Via Sanchez.)

Bonus: Lanny Davis, a wanker for all seasons. (Davis: “The compromise bill would provide strict supervision by the special FISA Court.” Sanchez: “This is right, if by “strict supervision” you mean ‘checking whether Mike Mukasey can fill out a form correctly.'”) Anyway, when Lanny Davis is defending you it’s pretty much a dead certainty that you’re wrong; I hope he will be back to being an anti-Obama hack soon.

Clinton’s FISA Vote

[ 22 ] July 11, 2008 |

There seems to be some debate about whether Clinton’s laudable vote against the FISA bill was politically motivated or not. Obviously, this is unknowable, although I suspect that she would have voted differently had she won the nomination. Josh Patashnik, however, makes the more important point: it doesn’t matter. Trying to figure out whether Clinton’s FISA vote was sincere or not is as irrelevant as figuring out what John McCain really thinks about abortion rights. Responding strategically within a given environment is what politicians do. And if Clinton responds to the fact that her political power base will be in the Senate rather than the White House to be a leader in checking the growth in executive power, great. It’s not as if there aren’t plenty of member of Congress who have remained supine against assertions of executive power.

Are You Tough Enough?

[ 32 ] July 10, 2008 |

No. (I suppose this could work with other entries from the Maurice Starr oeuvre: “Step 2! There’s so much we can do! To capitulate to Bush and expand arbitrary executive power!”)

See Greenwald, CHS, and the ACLU. And all due credit to Clinton.

Court Rules Against Death Penalty for Sexual Assault

[ 0 ] June 25, 2008 |

In a 5-4 opinion written by Kennedy, the Court has ruled that the Eight Amendment makes the death penalty unconstitutional in cases where the defendant did not intend to cause death. More when I have a chance to fully read the opinion.

Good, If All Too Quixotic

[ 15 ] June 25, 2008 |

Dodd and Feingold to filibuster the House’s awful FISA bill in the Senate. And Reid is co-sponsoring an amendment stripping the bill of the provisions providing retroactive immunity for corporations who illegally violated the privacy of their customers.

I wish I could disagree with Jonathan Zasloff:

Presumably, [Obama] will vote for Harry Reid’s amendment stripping retroactive telecom immunity from the bill. The Republicans will filibuster it. Then Reid, showing the spinelessness that has distinguished his term as Majority Leader, will pull the amendment. Then Dodd and Feingold will try to stop ending debate.

What does Obama do?

If he votes to filibuster, then he looks foolish because just last week he supported the House bill, with a weak statement that was really beneath him. If he does this, then he’s “flip-flopped in four days.” (Not as agile as McCain, of course, but that never matters according to the Beltway press.). But if Obama votes to end debate, then he plays along with Republicans and further infuriates the base (and by the way all those who believe in accountability). Either way, he does not look good.

I suspect he will vote to end debate. And that will leave a very bad taste in the mouths of many Democrats. One might even call it “bitter.”

I actually wouldn’t be surprised if Obama voted against cloture, using the fact that he nominally opposed the retroactive immunity provisions as a justification. The problem is that unless the vote is decisive, such a vote wouldn’t actually matter. The time for Obama to stop the bill would was to persuade the House leadership to prevent it from coming to a vote.


[ 40 ] June 23, 2008 |

In a general sense, I agree that sometimes people can get a little sloppy about blaming “the Democrats” for the enactment of policies or nomination confirmations opposed by most Democrats in Congress. Pace Ralph Nader, it’s pretty silly to use (for example) the passage of a tax bill that only 12 Dem Sentaors and 28 House Dems supported and that a Democratic president would have vetoed to argue that there’s no difference between Democrats and Republicans.

On the FISA bill, though, I can’t really object if people want to say the Democrats caved. It’s true that plenty of Dems did oppose it, and in this sense the party is better. On the other hand, the House leadership supported it, the party’s de facto leader supported it, and its very prominent runner-up hasn’t done anything about it either. This wansn’t a vote made possible by the malapportionment of and/or lax party disciple in the Senate or the collaboration of a small minority of Blue Dogs. The passage of the awful FISA bill is a failure of the Democratic Party. It was all too “bipartisan.”


[ 13 ] June 19, 2008 |

This really is bad.

Fortress Britain

Much rumness afoot in and around the Palace of Westminster these days. Gordon Brown, the mean, one-eyed Scotsman who took over from the Teflon-coated, happy-clapping Blair as Prime Minister has been lurching from one crisis to another, ever since failing to call an election* upon his succession to the top job. Widely disliked by the electorate, and not burdened with the charm or wit of his predecessor, Brown has spent his time in office making himself and his party more and more unpopular, and the recent local elections delivered the Labour Party what could only be described as a ‘kicking.’

Brown’s latest triumph, if such a term could be used, has been the passage of a Counter-Terrorism bill through the House of Commons, although by a mere nine votes, obtained from the Northern Irish DUP party, allegedly thanks to a number of promises (you can call them bribes) regarding financial aid for the province.

Quite a few Labour MPs revolted and voted with the opposition, appalled by some of the authoritarian measures in the bill, notably one that gives the government the right to detain a suspect for 42 days without before having to charge them. Brown, and his odious acolyte Tony McNulty (Home Office minister and the man responsible for shepherding the bill) have claimed that the police and security services have requested these powers in order to deal with terrorist emergencies. Oddly, the head of the Security Service (MI5) actually came out and stated just the opposite, and it’s hard to see a good reason why this power is even needed, since previous legislation grants the police these powers in the event of such an emergency.

Thankfully for the UK, our unelected chamber, the House of Lords, will tear the bill to shreds once it’s submitted to them, at which point it will return to the House of Commons and the process will start again.

The passage of the bill has even seen the shadow Home Secretary, Conservative MP David Davis resign his seat in protest. For a rather right-wing politician to make such a move ought to underline just how egregious most people consider this legislation.
Should Brown manage to get a revised bill through the House of Lords, odds are that the European Court of Human Rights will strike it down, and all in all it’s hard to see why Brown is willing to squander the tiny remaining bit of political capitol over this. But, it’s a funny old world.

*For those unfamiliar with the UK and its electoral schedule, the sitting government chooses when it wants to go to the polls any time up until 5 years from the last election, usually allowing them to pick the time that would be most advantageous to their chances.

What He Said

[ 0 ] June 12, 2008 |

Souter, concurring in Boumediene:

It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny,today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

To think that permitting access to basic habeas rights to prisoners who have been arbitrarily detained by the American government in American-controlled territory for six years is some kind of massive judicial power grab is silly. More later.

UPDATE from bean: Marty Lederman has initial reactions to the decision.

UPDATE the second (SL): Matt beat me to my hobbyhorse, but I note initially that reasonable, moderate, thinking person’s conservatives Alito and Roberts not only dissented (the latter writing) but joined Scalia’s dissent — which begins with a some paragraphs of talk-radio demagoguery about how because of the Court Islamofascists will be come to kill your children — in full. Again, it seems worth noting that there is effectively no substantive difference between Bush’s appointments and Scalia and Thomas.

Is Roberts/Alito Optimism Justified?

[ 8 ] June 6, 2008 |

Publius has a more optimistic take on last week’s civil rights enforcement decisions, in which (unusually in a major case) Alito and Roberts broke with Thomas and Scalia and (with Kennedy) joined the Court’s more liberal bloc, than I did. His case is, as always, worth reading.

However, I note a recent case that contained a split that I would still predict as being more likely. Earlier in the week, Thomas and Scalia joined with the three more liberal members of the Court to throw out a money laundering conviction, while Alito and Roberts joined with Kennedy and (the relatively statist) Breyer to uphold it. The case involved a classic use of prosecutors using money laundering statutes to apply more draconian sentences as part of the largely futile Wars on Gambling and (Some Classes of People Who Use Some) Drugs than are otherwise called for. In this case, the feds argued that the ordinary activities of an illegal gambling ring — paying runners and customers — also constituted money laundering. The case turned on whether the word “proceeds” in the statute should be read to mean “receipts” or “profits.” As Justice Scalia persuasively concludes, however, given the ambiguity of the statute and lack of federal precedent the state’s position “turns the rule of lenity upside-down. We interpret ambiguous criminal statutes in favor of defendants, not prosecutors.” This case provides another example of a civil libertarian streak in Scalia and Thomas than seems almost entirely non-existent in Bush’s two new appointments. And I also note that in this case Scalia and Thomas actually cast decisive votes, whereas in last week’s cases Alito and Roberts just made a 5-4 decision 7-2.

The rest of Publius’s argument probably merits a separate response. The short version of my reply would be here. It’s true that Roberts and Alito are more formally “minimalist” and less likely to explicitly overturn precedents than Thomas and Scalia. But this only matters if there’s some substantive difference in how they actually apply these precedents, and don’t see any evidence of this. What difference does it make if Carhart isn’t explicitly overturned if in applying the case the Court votes to uphold a virtually identical statute? If anything, the Roberts/Alito approach is worse, not only for progressive constitutionalism but for democracy.

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