Condemnation

Right around the holidays, American Atheists, Inc. used some of its money to rent space on a billboard near the entrance to the Lincoln Tunnel connecting Weehawken, New Jersey to Manhattan. They put up this image for one month:

A Christian church didn't like this so much, so they responded in kind -- renting the same billboard space for the month following the AA billboard:

This was exactly the right thing for the Christian church to do -- the remedy for speech you don't like is more speech of your own. The church's message was peaceful, pointed, and positive. While I don't necessarily agree with the message, I fully recognize their right to have done what they did, and I have nothing but praise for the way they went about exercising their right of self-expression.

Unfortunately, not everyone is as content as I to stand back and let others say what they have to say. The Friendly Atheist reports that this is what the church's billboard looked like yesterday:

This is totally and absolutely unacceptable. This atheist condemns the vandalism of the church's billboard, unequivocally, and I invite other atheists to do the same.


Now, it's not certain that the vandal is an atheist, but I'll admit that the motive of expressing disagreement with the content of the billboard seems substantially more likely than any other motive one might reasonably posit. He needs to knock it off. He's making the rest of us look bad.

Those Christians at the Times Square Church have the same right of expression that atheists do (and that everyone else does too, for that matter). Their church is, fundamentally, a collection of people, people of good faith and good intentions, who engaged a public debate in an appropriate and positive way. They paid good money to rent that billboard. For the month that they rented it, the billboard was effectively their property to have done with as they please (within reasonable limits which they obviously respected).

For someone else to come along and alter their message this way, however crudely, is stealing from them. Theft is not an appropriate form of expression. It is a crime.

Here's hoping the crime is detected and prosecuted. Vandal, even if you are a fellow atheist, you'll get no love from me. At least, not until you grow a pair, turn yourself in to the police, and apologize for what you've done.

I Have A Soft Spot For Elephants

Let's play a game, albeit a morbid one. I've found a crime from a real case, and I've created a hypothetical circumstance. Consider two crimes, both setting in motion chains of events which result in the death of a human being:

1. Defendant is a construction worker who goes to his jobsite late early in the morning, and steals a stove. Four hours of morning rush-hour traffic and sixty miles later, the stove falls out of the guy's pickup truck. A big rig swerves to avoid the debris, jackknifes, and turns over. A passenger car is unable to swerve away from the big rid in time, gets pinned underneath the trailer, and is killed.
   
2. Defendant is an animal trainer for a circus, who grows angry after an elephant fails to perform a trick properly during rehearsal and repeatedly strikes it with an electric cattle prod. The elephant goes berserk after being thus abused and rampages out of the tent, trampling and killing a fifth-grader who was trying to sneak into the tent to catch a peek of the exotic animals inside.
   

Now, imagine you're the judge. Which punishment do you give to each crime? Your choices are:

1. One year in the county jail.
   
2. Twenty-five years to life in state prison.
   

In the state of California, the correct answer is "A-2" and "B-1." Why? You might think that the decedent's status as a trespasser in "B" is important, but that's not really a very big factor at all.


In scenario "A," the thief has stolen goods valued in excess of $400. This is grand theft, a felony under Penal Code § 487. While still engaged in the commission of this crime (driving away with the stolen goods four hours later), an activity related to the crime sets in motion a chain of events causing the death of a human being. This is called felony murder and felony murder has the same sentences as overt murder. In the case of a real scumbag who really did this was convicted of first-degree murder, which gets you twenty-five to life. (No citation for the case yet; found via Prof. Shaun Martin.)


In scenario "B," the trainer who tortured the elephant has violated Penal Code § 596.5, which is a misdemeanor. Under California's misdemeanor-manslaughter rule, the commission of a misdemeanor resulting in the death of a human is chargeable as manslaughter only if the underlying criminal act – applying the cattle prod to the elephant – is, itself, dangerous to human life. People v. Cox (2000) 23 Cal.4th 665, 675-676. So there's not even misdemeanor manslaughter, much less felony murder, since it's only a misdemeanor to torture an elephant with an electric cattle prod or indeed in any other manner.


Now, we shouldn't feel too awful about the defendant in scenario "A." If you read the case, there's a lot of very unsavory facts about the actual, real-life defendant. I didn't call him a scumbag two paragraphs above for no reason. But most relevant to this case, he didn't put up the tailgate or put any tie-downs on the stuff he stole, which seems to me a separate criminal act that I wouldn't hesitate to call "reckless endangerment of human life." But there is no mention in the case of him even being accused of this crime. Rather, he was convicted of felony murder predicated upon burglary.


But the defendant in "B" (this one is the hypothetical situation) is also significantly morally culpable; his acts are outrageous. An elephant trainer ought to know that when you push an elephant too far, he will go on a rampage. It doesn't take an elephant trainer to know that rampaging elephant is a clear and present danger to any human being who might happen to be around, whether they are trespassing or not. Besides which, torturing an animal is inherently repugnant; the initial wrongful actions of the defendant in scenario "B" shock my conscience to a degree far more powerfully than do the facts in scenario "A."


Maybe your sense of morality is more offended by theft than animal abuse. Fair enough. But consider this: which of these two scenarios would lead a reasonable person to foresee a fatality, at the time the underlying crime was committed. You could go either way, but it's a close call either way. Just as the guy in scenario "A" could and should have reasonably foreseen a reckless danger to human life by not tying down the (ill-gotten) cargo in his truck, the guy in scenario "B" could and should have reasonably foreseen that the elephant would go into a rampage after being tortured. Neither of these are particularly lengthy stretches of the imagination. Given that the defendants' actual actions are roughly equal from the issue of foreseeability of future harm, there ought to be similar sentences. But no.


It would be too much of a stretch to say that this demonstrates that the State of California values stoves more than it does elephants. And while in the particular case of "A" the guy gets no tears from me, the totality of the chain of events in question makes a sentence of 25 to life for just anyone who did those things seem a little harsh. The sentence in "B," by contrast, is obviously inadequate punishment in light of both the moral gravity of the underlying act, and its tragic result.

Car Cameras Coming To California

This Saturday, it became legal to operate a vehicle equipped with a "video event recorder." These have already been in use in some police vehicles, and are expected to be adopted first by public transportation agencies, and then gradually by other users. Inevitably, people will want them in their cars -- or rather, their insurance companies will, and that will induce them to offer a discount on insurance for customers who have video event recorders.

What do these devices do? As explained to the Legislature:

Video event recorders for vehicles capture high definition videos, both of the front of the vehicle and the rear, using a dual camera device and record when an event occurs, including accidents or aggressive driving behavior.  The videos are stored on internal memory together with other information such as G-force values, GPS coordinates, date, time, and more.

So that means that when you have a collision, the video event recorder will have all of this information available for download. So bill passed out of the Legislature with nought more than a peep of opposition, and became operative on the new year.

If a vehicle equipped with these devices is involved in a collision, it will provide data that would be immensely useful for determining liability. That much is obvious. What may be a little less obvious is that it would also be very useful for determining damages -- because it would record the strength of the impact in G-force, as well as enable determination of the vectors. Inflation of strength-of-impact testimony would therefore be easy to detect with this data.

Of course, the uses of such a device by law enforcement don't stop there. A police enforcement vehicle equipped with a video device of this nature could easily record evidence of speeders. While the Legislature's analysis of the device does not include "speed" as a data point recorded by the device, that such information would be recorded ought to be obvious. It could be determined by tracking the amount of time it takes for a stationary roadside object to move through a frame of the camera's shot anyway.

It would be no great leap to integrate a LIDAR device with one of these things and mount it in a police vehicle, and set it out on the road to look for speeders. If that police vehicle were not clearly marked in traditional black-and-white enforcement colors, readily-identifiable by the top-mounted emergency lights, and branded with police insignia, then people would zoom right on by it, and have their license plates and faces captured on camera with LIDAR tracking their speed. At any time. Any other vehicle on the road might be a police speed enforcement vehicle and that means that every time you zoomed by another vehicle, you would be at risk for a ticket.

This would result in a myriad of new tickets. When I have to drive in to Los Angeles, I routinely set my cruise control at or just above the speed limit. In the forty-mile drive, I am passed by literally hundreds of cars. A Highway Patrol vehicle behaving in such a fashion could generate hundreds of tickets an hour.

And there are already hundreds of traffic cameras deployed along freeways, highways, and parkways across the state. More are coming. Right now, they are primarily used for monitoring traffic flow. But it wouldn't take a computer whiz all that long to set up a system to coordinate the video from the stationary roadside cameras with data from police-mounted recording devices.

The ACLU has raised invasion-of-privacy issues here. But I think they're not on strong ground to do so. This is not a particularized search of an individual (which as a general rule ought to be done only pursuant to a warrant or other probable cause).  It is a generalized monitoring of activities and behavior done in a public place. When you're out in public, people can see you. You have no reasonable expectation of privacy while driving a car on a public road.

Now, there are additional things that might happen. Police vehicles equipped with these devices would record what happened before, during, and after an enforcement stop was made. They would record things like how the vehicle was behaving -- was it speeding, was it really weaving around in traffic, was it really being driven "erratically"? That would inform things like probable cause hearings and possibly lead to exclusion of evidence. If the police engaged in physical abuse of a detainee or other civil rights violations, it would record those things happening, too.

Some police officers turn out to be rather touchy about cameras recording their activities, and perhaps for good reason because sometimes those cameras record questionable police activity.  Such police officers get very little sympathy from me, just as the speeders above get very little sympathy from me. The speeders are committing crimes and endangering public safety. Police who engage in civil rights abuses are also committing crime and undermining public trust in authority. Video evidence can potentially cut either way in such a situation, and is often ambiguous, but it provides additional information.

Those officers who might be tempted to step over the line could well find themselves deterred from doing so if they knew that their activities would be recorded and subject to discovery later. Would that mean that they would not enforce the law at all, allowing criminals to go unpunished? I rather doubt it personally -- but better that a criminal go free than that an innocent person be imprisoned; better that the police are too cautious about using their power than too enthusiastic to do so.

What's the dark side to cameras and black boxes recording everything that happens on the road? The ACLU is right that there would be a diminishment of privacy. A trip to the adult bookstore or to participate in an extramarital tryst -- activities which are not illegal but are embarrassing -- would become a less private affair, one which one's spouse and family, employers, and potentially one's voter's might learn about. Is that a bad thing? You'll have to make that call, I won't go that far. I suspect that the data thus recorded would become like any other kind of electronic information -- subject to discovery and judicial weighing of the value of the contents against the privacy and Constitutional concerns.

It's a brave new world out there. You should start reacting to it by observing the speed limit.

Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.


* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

Flunking Gandhi's Test

"A nation's greatness is measured by how it treats its weakest members." -- Mohandas K. Gandhi.

A prisoner is utterly and completely at the mercy of the government which has imprisoned him. He relies upon his jailers for food, for safety, for medical care, and every other necessity of life. Any comforts or personal items given to him from the outside are subject to immediate confiscation and thus private possessions are, as much as anything else, dependent upon the fiat of the guards and wardens who run the institution. Prisoners lack nearly every civil liberty which you and I, as free people, take for granted. A prisoner may easily counted among the weakest members of a society. How we as a society treat our prisoners is a measure of our moral worth.

By this yardstick, we are a badly deficient society. Since May, a man who has been accused of a crime but not yet convicted is being held in solitary confinement in a military prison. Now, there is no particular reason to love PFC Bradley Manning; if he is guilty as charged, he was personally responsible for the leaking of all sorts of classified documents, many of which wound up on Wikileaks and have caused our nation no end of embarrassment and, at least temporarily, weighed down our ability to engage in diplomacy. If he is convicted of these crimes, he should be punished.

But he hasn't been convicted yet. Of anything. As of right now, PFC Manning is an innocent man. Our legal system, ostensibly, presumes his innocence until such time as a verdict is entered against him. And yet this is how a citizen of the United States who has, as of yet, been convicted of no crime and has demonstrated no propensity to violence is being treated by the government:

For 23 out of 24 hours every day -- for seven straight months and counting -- he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he's barred even from exercising and is under constant surveillance to enforce those restrictions. ... [Bradley is] denied ... a pillow or sheets for his bed (he is not and never has been on suicide watch). ... [T]he brig's medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.

I'm no prison warden, but I understood solitary confinement to be appropriate for prisoners who are violent to other prisoners or to prison personnel. And bear in mind that, at this point in time, PFC Manning is entitled to a presumption of innocence. The government has not proven, beyond a reasonable doubt in a court of competent jurisdiction, that PFC Manning has done anything wrong.

Let us presume, however, that Manning had been convicted already. Let us presume further that we could prove that what Manning did -- leaking thousands of documents in violation of secrecy orders -- had serious consequences like people getting killed, wars being prolonged unnecessarily, and human misery around the globe extended where it could have been ameliorated. Again, I'm not suggesting that criminals like that should not be punished.

We seem to have lost sight of the fact that incarceration, without any particular enhancements, is already a really bad, nasty, punitive thing to do to a person. Prison is a Very Bad Place. Being deprived of one's liberty is a Very Bad Thing. What's more, prison causes one to involuntarily associate with a society of nearly exclusively other criminals and prison guards. No loving family, few friends, boring work, and a soul-crushingly institutional environment.

This would be awful even without the fear of violence and prison rape about which society at large is already is far too cavalier. PFC Manning would also earn himself a dishonorable discharge from the military, a permanent stain on his character and reputation which he would carry for the rest of his life even after completing his prison sentence. He will have lost his future.

You would not voluntarily submit to this, nor would I. This is the price, and the threat, for violating society's standards of minimally acceptable behavior. It is the penalty for betraying one's country, one's word, one's honor. And if Manning is convicted of his crimes, we will be justified in doing these things to him.

What's more, there are good reasons to hold accused prisoners in confinement. Some are flight risks. Others may be difficult to relocate by the time of trial. Others have demonstrated that they are dangerous or are likely to engage in conduct contrary to the interests of justice, like by intimidating people who might be witnesses against them at trial. Some just plain can't post bail. So I have no particular beef with the idea that PFC Manning should be incarcerated pending trial.

So it's not that Manning needs to be treated with kid gloves; I'm not saying that we should put him up in the Hilton or even let him go free. But when a legitimate question can be raised that a man is being tortured, we've crossed the line from acceptable to unacceptable behavior.

"Torture?" you ask. "Is solitary confinement really 'torture'"? Maybe yes, maybe no. You may recall that the term "torture" is defined by law:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ... .

Anti-depressants are mind-altering substances. Granted that in many instances they are administered for therapeutic rather than punitive purposes and many people take them voluntarily. Prolonged isolation from social contact may, and often do, have the effect of "disrupting profoundly the senses or personality" of the person so treated; prolonged confinement and deprivation of interaction with other people very often has the effect of causing depression on the person so deprived.

Solitary confinement of a prisoner need not be "torture" if it is imposed as a "lawful sanction" for something. "Sanction" indicates that someone has done something wrong to earn this treatment; it is a phrase laden with implications of punishment. The government is not yet in a position to impose a "lawful sanction" on PFC Manning because PFC Manning has not yet been convicted of any crime; he has not shown any propensity to violence while in confinement.

So is this "torture"? What I don't know is the intent of Manning's jailers; this is not readily ascertainable and I hesitate to rely on Greenwald's article alone to determine this. But the objective, verified* facts of Manning's treatment are not in substantial dispute; he is, in fact, being treated this way. Using the definition of 18 U.S.C. 2340, it sure looks like torture. If the intent is to make Manning's life behind bars uncomfortable, then yes, this is torture.

Once we started saying "Sometimes torture is morally justifiable," that led to us saying "Some prisoners have done things so bad that they deserve to be tortured," and now, we're at the point that there is a massive shrugging-off of the fact that a man who has been convicted of no crime, a man we ought to presume is innocent, is being treated thus for no apparent good reason.

I have said for a long time that we ought not to torture our prisoners -- not because they don't deserve it, and not because we would expect to be treated so well were positions reversed, and not because torture is ineffective (although that is subject to at least reasonable debate), but because torture is contrary to our own collective moral standards. We should not torture, because we are better than that and for no other reason.

When we betray our own standards once, it becomes easier to betray them later. Society's disregard of such treatment of a presumptively innocent man is the next step down that road. That is why the rule should be simple and absolute: no torture, ever.

Again, this might not be torture as that term is legally defined. But it is also not a good example of how we ought to treat someone who has not yet been convicted of any crime. Whether it's torture or not, we have a Constitutional prohibition on cruel and unusual punishments. I rather doubt that most other prisoners in this brig are getting treated the way Manning is. I rather suspect that his treatment is motivated by a desire to inflict suffering for the sake of inflicting suffering -- the very definition of cruelty.

Let PFC Manning be treated like any other accused but as-yet-unconvicted military prisoner. Let him stand trial, and if convicted, let him then receive the full punishment specified by law. But let us not, in our zeal to see a crime punished, lose sight of our own ideals.


* Greenwald's article linked above accuses the military prison of denying Manning access to news and other current information in the one hour per day of relief from solitary confinement allowed to him. Manning's jailers dispute this, and only this, portion of Greenwald's factual reporting; they also dispute Greenwald's characterization of the solitary confinement as "torture."

WikiLeaks - An Apparently Dissenting Perspective

Nothing in the leaked documents is substantively surprising. We all knew, or should have known, that Arab nations are very nervous about a nuclear Iran, and also very nervous about saying so publicly. We all knew, or should have known, that Russia's democracy is woefully corrupt and that some of its officials are in bed with organized crime. We all knew, or should have known, that some "diplomatic staff," of all nations, are really there to gather intelligence.

We also all knew, or should have known, that diplomats and other people working in government have opinions and make jokes to one another.

It's a great shame that many of these people will now have to be transferred, have their careers interrupted or put along different paths, and that there is a degree of embarrassment particularly but not exclusively about U.S. diplomacy. But it's not like diplomacy is going to stop, either by the U.S. or anyone else. It's not like intelligence gathering is going to stop, either by the U.S. or anyone else. There's more sunshine on the process now.

The likely result of all this is going to be greater use of "top secret" designations for documents that probably don't really need to be treated that way.

Whoever leaked the documents has committed a crime. WikiLeaks itself, however, is a media outlet and does not seem to have committed a crime. I take the claims that peoples' lives are in danger with a grain of salt -- the ones whose lives really are in danger because of the exposure can be moved and protected.

I don't pretend to know whether Sweden is right to pursue a rape indictment against Julian Assange. But that's an entirely separate matter than leaking these documents and as I recall, rumors of that indictment pre-dated anything relating to the diplomatic documents release. If Sweden is, either on its own or bowing to pressure from another nation, going after this prosecution because of the WikiLeaks thing, that's pretty scummy.

Overall, I'm not pleased that the whole thing happened, but the media, the blogosphere, and the pundits are assigning more importance to it than seems warranted.

United States v. Ghaliani

Ahmed Ghaliani was accused of being a significant participant in the August 7, 1998 bombings of the United States embassy complexes in Kenya and Tanzania. At least 223 people were killed and over 4,000 were wounded in nearly-simultaneous suicide bombings of the two embassies in Dar es Salaam and Nairobi.

After a substantial political controversy, Ghaliani was tried in a regular United States District Court in the Southern District of New York. A critical witness against Ghaliani and a substantial confession were excluded from the trial because the judge found that the evidence had been obtained through unconstitutional interrogation techniques (commonly called "torture"). The result was that Ghaliani was acquitted of 284 of the 285 counts against him, being convicted of only a single count of conspiracy.

Let's not lose perspective on the real-world result. Ghaliani hasn't been sentenced yet, but the minimum sentence that can be imposed on him is 20 years and the judge can find that good cause exists for a life sentence. There is no parole in the Federal penal system -- if you're sentenced to serve 20 years, you're going to serve 20 years. This is not a man who is going to be walking free, planning additional crimes, or hanging around with his terrorist buddies again any time soon. That's the result from a single count.

Some have argued, and with some weight to the argument, that torture is in fact useful to extract information from prisoners. But let's distinguish "information," which can be useful and used for gathering additional "information" and possibly motivating intelligence or military operations, from "evidence," which can be used in a court. Information which is obtained wrongfully cannot be used as evidence.

It needs to be underlined that the same exclusion of evidence would have applied in a military tribunal. Substantial, educated, and mature discussion of the issue can be found at the excellent blog Lawfare, which has been having something of a Ghaliani-fest since the verdict was returned. It also bears noting that the conviction's having been obtained in a civilian court makes the conviction much easier to defend on appeal. What it really comes down to is not in what forum Ghaliani should have been tried but whether he should have been tried at all or simply held without trial indefinitely.

While I can see the attraction to indefinite detention, our legal system cannot tolerate such a thing forever. Someone who is in the power of the government at some point transforms from being a "detainee" to being a "prisoner" and becomes entitled to some kind of legal process, an opportunity to know why he is being held, and to present evidence and argument in a meaningful bid for freedom. We do this not because we lack concern about guys like Ghaliani. We do this because it is the only way for us to act consistent with our own morals and ideals, it is fundamental to our system of government, it is at the still-beating heart of why there is such a country as the United States of America in the first place. We must not fear truth, and truth is, hopefully, what trials are all about.

What bothers me about the verdict here is the question of "what if he had been acquitted of everything," because then we would have to make a very hard decision. If Ghaliani is really as dangerous as the government tells us he is, he cannot be allowed to go free. But if he is acquitted of any crime, then we have no legally valid option but to let him go free. And the fact that the Administration announced before the trials started that there was no chance at all that Ghaliani would be allowed to breathe free air, this makes the trial appear to be a show trial. I'd rather that they simply skipped the trials altogether than have the trials not be meaningful. If Ghaliani had been acquitted of everything, he should have been set free.

The big problem here, and I don't claim to have any easy, pat solutions to it, is that so much evidence against so many of these Really Bad Guys is tainted from being obtained through torture. So it could very well be the case that most of the really good evidence we've got against, say, Khalid Sheik Mohammed will be excluded from any court. So we return to the question of whether we should have trials at all.

There is insistence in some quarters to treat terrorism prisoners, and all anti-terrorism activities, as military in nature. If we were talking only about protecting ships in foreign ports, fighting bad guys in the mountains of Afghanistan, and shooting missiles at camps, I could see that. But we're also told that there are dozens of terrorist training camps within the United States, and we know that U.S. citizens are involved in terrorism activities of some kind. There is intelligence that must be gathered within our own borders and from our own citizens. Some interaction with the criminal justice system is therefore inevitable.

It's very, very tempting to say, "Keep them in Guantanamo and throw away the damned key already." But here's what I can't get past: if we really don't have any good evidence to offer against someone we're keeping under lock and key, we shouldn't be keeping that person under lock and key. Trials are where that kind of evidence is tested. We fought the Revolution for that.

Trials are a risk for the government. But at the end of the day, our choices are to betray our own principles or take the risk. If we succeed, the problem of what to do with these guys really does go away -- they go into the penal system and that is that. Let us hope that we have sufficient admissible evidence for the rest of the prisoners with whom who we eventually have to do something.

She Turned Me Into A Newt

So newly-nominated U.S. Senate candidate apparently once "dabbled into witchcraft" back in her early twenties. That sounds like a gigantic yawner of a non-story to me.  There being no religious test for the holding of Federal office and all forms of religion being equally invalid nonsense to me, I fail to see why I should care that someone experimented with a religion not of her upbringing while she was a young adult.

Except it isn't a yawner of a non-story to a lot of people. This seems to have a reasonably large number of people upset.

I mean, come on, it's not like she experimented with Islam or anything like that.  Far, far better that she actually worshiped a divine personification of evil (one prominent conservative blogger calls this "excusable") than it would have been had she learned about a religion with over a billion adherents worldwide. And she's certainly come back to the cult of zombie-worship in a big way since then.

It's not at all clear to me that she actually did literally worship Satan anyway. From the small excerpts of the statements she made on Politically Incorrect that I can identify using the (admittedly minimal) effort I've put in to investigate story, it looks like she engaged in a single act of some kind of non-Christian worship while on a date with a man identified as a "witch." That means that, while in her early twenties, she dated a guy who was a Wiccan.

There are appreciable numbers of Wiccans out there and here's a news flash: they don't worship Satan. They worship -- well, there's no formal structure for Wicca so I don't think anyone can make a broad, categorical statement about who or what Wiccans worship as a group. Some Wiccans worship an entity they call "The Goddess" and others worship an amorphously-defined pantheon of spirits of nature, aiming at ultimately worshiping nature itself. In practice, Wicca involves honoring where your food comes from and the spirit of an animal that you consume, treating others the way you would want to be treated, and seeking an inner peace and harmony with the world around you. There are a lot of complex reasons, some rooted in over a thousand years' worth of history, why Wicca is called "witchcraft" and "Satan-worship," but taking its teachings at face value,* it is no more morally objectionable than pretty much any other religion you could care to name.

Wicca does not come with any of the hangups about sex associated with more traditional religions and for at least people, engaging in a Wiccan ritual is a countercultural and somewhat rebellious act. Some varieties of it use "ritualized" sex as part of an act of worship, so it could be that O'Donnell's date was actually simply trying to seduce her (and who knows, maybe he succeeded or didn't really have to try all that hard, that's between him and her and none of our business, although if so that would make the prudish O'Donnell something of a hypocrite) and all the Wiccan worship stuff was so much window dressing for this otherwise rather ordinary sort of human activity -- people in the twenties go out on dates and sometimes the dates go well and they have sex. It's, um, a lot of fun. O'Donnell was as entitled to have that sort of fun as anyone else.

Now, there's all sorts of reasons to be skeptical about Christine O'Donnell as a candidate for the U.S. Senate. She seems to take a rather casual view towards campaign finance laws and has allegedly used campaign donations to pay personal expenses like her rent. She has publicly voiced a deep identification with the women of the Lord of the Rings fantasy trilogy and the Chronicles of Narnia series (again with the magic and witchcraft!) which is fine as a light-hearted matter but she seems to take the analogy rather more seriously than that.  Her early career involved advocating such an uptight vision of human sexuality that she has had to deny rumors that if elected, she would attempt to criminalize masturbation (I would foresee practical enforcement problems).†

Is the nomination of such a whack-job (no masturbation pun intended) a sign of deep insanity within the Tea Party movement?  I don't really think so.  There is certainly a legitimate debate to be had about whether the Tea Party is now or is inevitably going to be a movement embracing social causes.

I've had the impression from the start that the motive force behind it is a simple fear of government in the hands of Barack Obama, but over time I've been forced to admit that there's more depth to it than dislike of Obama and from the beginning some criticism (although not a whole lot of venom) has been directed at former President Bush for his free-spending ways, too. There seems to be a desire for fiscal responsibility but at the same time a desire for lower taxes (the legend is that the "tea" in "tea party" stands for "Taxed Enough Already"), and those are probably incompatible goals for the foreseeable future.

though, and I wonder if what's really going on is that individual local areas of "tea party" activism are allowing the social and religious issues to creep in while others, like the one characterized by the woman interviewed on NPR who said that as far as she was concerned, the tea party movement was about "Constitutionally Limited Government, Fiscal Responsibility and Free Markets." If I were convinced that was the extent of what was going on with the tea party movement, I could more or less get behind it.

But when we find out that a Tea Party-approved insurgent candidate once, as a very young woman, experimented with a non-Christian religion, and all the energy and air goes out of her campaign with a gigantic WHOOSH!, yeah, that makes me think that religion is one of the motive forces powering the phenomenon. Then I see things like this article, and while I don't pretend that it (or almost anything else I can find) is unbiased, it makes me think that even though on its face this is a movement with objectives I can endorse, people like Christine O'Donnell are not people like me and I've little reason to believe that, were she somehow elected to the Senate despite having had a racy date with a Wiccan nearly twenty years ago, I would be pleased with the way she helped govern our country.

As a final observation, I'll note that the Tea Party's big primary successes this cycle all seem to have come in relatively small states, or in states whose nomination processes have rules that lend themselves well to "inside baseball." The most-touted Tea Party successes in Federal elections have come in Delaware, Nevada, Alaska, and Utah. O'Donnell won her nomination by about 3,500 votes out of under 60,000 cast. She won, and that's significant, but it seems that in larger jurisdictions, the "establishment" Republicans have large enough numbers and enough pull that candidates of all sorts are forced to steer towards the mainstream and abandon their personal ideals for the sake of becoming electable at all.‡

So while I don't think the reports of Christine O'Donnell's flirtation with Wicca in her twenties is particularly revelatory or damning about her, it does reveal something about the state of the Republican party and its relationship with the Tea Party movement. It suggests to me that the party as a whole is probably still unmoved by the Tea Party but in smaller groups, and smaller states, a group of people who haven't really thought things through and have difficulty separating libertarian from socially conservative ideals are calling the shots. In other words, there is little to no adult supervision.


* To demonstrate how ridiculous a religion is, you rarely need to go deeper than face value.
† But seriously, Christine. Diddle the bean already. Do us all a favor.
‡ I'm looking at you, Rand Paul.

Waiting at the Mall

The audible-alarm inventory control system here enjoys the same respect that audible car alarms do on the street: none at all.

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Know The Odds

At a booze-enhanced social gathering a couple weeks ago, I met a woman who had been convicted of some kind of Federal drug offense. She was pleasant enough to talk to but when she found out I was a lawyer, she wanted to tell me all about her story and how unfair it was that she had been "forced" to plead guilty and hadn't really done anything wrong.

Now, it's not like I think I got the whole story from this woman after she'd had a few cocktails at a social gathering. Chances are pretty good that if her attorney told her she was better off entering into a plea arrangement, there was a reason for that. In my experience people convicted of serious crimes are always elliptical in telling people they've just met all of the relevant facts. This woman specifically had some serious problems with her tale. She couldn't or wouldn't articulate the name of the charge to which she had pled guilty. Sketchy. She also claimed that she had been tried for the exact same crime, three times in a row, in the same court, and that she accepted a guilty plea only after having been acquitted twice previously. Something makes me doubt that both her second and third defense attorneys were so dim as to have forgotten the double jeopardy rule during the course of two jury trials (professors tend to dwell on the double jeopardy rule in most law schools), so once again, there was almost certainly more to the story than was disclosed to me.

This is not uncommon. In the bulk of social events where I meet new people and they find I'm a lawyer, I wind up getting told half or less of a story, all from one person's perspective, and asked to affirm that an injustice has been done. Which is one of the hazards of the profession and as professional hazards go, that one isn't all that awful.

But here's my point for today's post. This woman said that if she thought she had been given a reasonable chance to present her case, she would have been acquitted. However, she believed (without reference to any kind of systemic or statistical data) that federal prosecutors win basically all their cases because the system is stacked in their favor. She feared the odds against her. That's what she claimed motivated her to plead guilty to a charge of which she said she was innocent.

In some ways, she was right to fear the prosecution. There are a lot of institutional advantages that the prosecution has, not the least of which is the aura of righteousness, credibility, and truth in which the prosecution and its primary supporting witnesses (law enforcement officers of various kinds) come clothed to court. They're wearing the white hats, you're not, and that's a very big deal. But there are also some other factors at play, such as the occasional juror or judge who takes the "beyond a reasonable doubt" standard of evidence seriously, and various rules of evidence that stands in between the jury and just any old bit of hearsay, wild suppositions of a cop, or unsubstantiated speculation offered by someone with an advanced degree. So my overall impression of the system is that a guilty verdict in a contested trial is not always a slam dunk for the prosecution.

And having met and socialized with prosecutors before, my impression was that of the cases that actually go to a jury, the prosecution wins roughly half of them. My new acquaintance simply disbelieved me.

By way of Defending People, I have found some statistics with which this dispute can be validated. The vast majority of cases are disposed of by way of guilty pleas, which is common knowledge.  About 90% of all Federal cases and more than 70% of state court cases (looking at the 75 largest counties in the US) are disposed of with guilty pleas.  And indeed, my interlocutor pled guilty herself in her own case, in her own description because she feared the odds of proceeding to trial.

But this statistic looks at the total number of criminal cases filed and compares them to their dispositions. That wasn't the proposition as framed--of the cases that go to a jury, what are the statistical chances that the prosecution comes up with a guilty verdict?  The U.S. Department of Justice has done that research for me.  While their newsletter points to the glowing odds of success for prosecutors overall, by breaking out the guilty pleas and looking only at cases where no plea is entered, we find that the odds at trial are actually favorable to defendants.

In state court, only 15.42% of all non-plea cases result in guilty verdicts.  Close to four out of five are then dismissed.  The odds are better for the prosecution in Federal court, where 40.99% of the non-plea cases produce guilty verdicts; just under half of the cases get dismissed when there is no plea.  Now, only a tiny number -- just under 5% in state court and just over 9% in Federal court -- result in acquittals. But a dismissal is as good as an acquittal from the defendant's point of view, because it results in no conviction.

So my interlocutor was not only wrong, I was too -- we were both too generous to the prosecution.  Of the cases in which there is no plea arrangement, the prosecution loses most of the time.

A reasonable claim can be made that these may be numbers that conceal more than they reveal. For one thing, there is no breakout of jury versus bench verdicts. Most of the non-plea cases resolved by dismissal rather than verdict, so who initiated the dismissals? Some were motions by the defense, some were made by the prosecutors in the interest of justice, and some initiated sua sponte by the court, and we have no breakdown there, much less any understanding of what went in to those decisions. Were the dismissals with or without prejudice? Stipulated or opposed? How many of them were made after the court entertained evidence, or after it had empanelled a jury? How many of them were followed up by a referral for prosecution in the parallel system? The DoJ report doesn't answer any of that for us.

What it does say is that overall, if there is no plea, guilty verdicts result a bit more than two times out of five in Federal court, and a bit more than one time in seven in state court. My interlocutor was very wrong; the prosecution doesn't win them all; even I was too generous to them, because the prosecution's win ratio in non-plea matters is statistically worse than half.

When you look at this number, don't lose sight of the fact that most criminal cases resolve by plea. There is a reason for that. So it's time for me to make a

BIG DISCLAIMER:

YOUR CASE MIGHT SUCK.

GENERAL STATISTICS DON'T MATTER IF YOUR SPECIFIC CASE SUCKS.

Even if the prosecutor might not be holding as many cards as he wants you to think he is, your case might still suck. Even if you do nothing but play the odds, the prosecutor is going to win enough cases to be scary. Only your own attorney can tell you if you have a realistic chance at walking away with an acquittal after trial. If your case does suck, a plea arrangement may be the best you can realistically hope for. Even odds of one in seven that you're going to be convicted of the charges brought against you should be taken seriously because prison is a Very Bad Place. If going there anyway is a functional inevitability, the right move is probably minimizing the amount of time you must spend there.

So if you real this post and later plead "not guilty" to a felony charge and it doesn't work out for you, don't come crying to me, pal. This blog post is not legal advice, it is only a generalized commentary about the law. It's a blog, for crying out loud. "Oh, I read on the internet that all you have to do is tell the D.A. to take a hike and you pretty much just automatically get off scot free!" That's not what I said -- I mused for a while about a somewhat surprising set of statistics, and then I said, "Your case might suck."

When your defense counsel looks at the case and tells you that you're better off with a plea arrangement, that's legal advice and she's giving it to you for a reason. That reason is not that she's been bribed by the prosecution, it's not that she's prejudiced against you, it's not that she's incompetent or scared to try a case, and it's not it gives her pleasure to suggest it to you. She's on your side. She's very likely the only friend you've got who's in any position to offer you any meaningful help. Treat her accordingly. Listen carefully to her advice, ask her intelligent questions about why she's giving you that advice, and seriously consider following it as dispassionately as you can.

Once Again Because It Apparently Wasn't Clear Before

Death threats are not an acceptable method of expressing your disagreement with someone else's political point of view. I happen to like Dick Armey for his career-long status as a budget hawk, but that is totally irrelevant -- like all Americans, he deserves the ability to express himself without fear of violence. Criticize him if you wish; more to the point, criticize the policies he espouses and offer better alternative if you don't like what he has to say. But death threats are not an acceptable tool of democracy. (It's also not accurate to say that FreedomWorks is a Tea Party organization; it's been around since 1992 in one form or another; the Tea Party movement is a much more recent phenomenon, one which continues to lose coherence in my estimation.)

Nor is it particularly relevant if your choice of victim is someone you would apparently sympathize with -- because if you cross the line into actual violence, well, now you've become an actual criminal and the full weight of the law should be used to respond to you. I don't much care how nice the group you apparently once volunteered for sounds. Knives are not appropriate tools of political discourse.

Words and ideas, folks. Those ought to be sufficiently powerful if they are on the side of the truth.

The Only Thing People Get Convicted Of Is Lying

It seems like no one gets in trouble for doing bad things.  They just get in trouble for lying about it. Consider:

• Al Capone, sent to Alcatraz not for running guns and booze during Prohibition, but rather for lying about how much money he made doing it.
• Richard Nixon was almost sure to have been impeached for obstruction of justice, had he not resigned and been pardoned.
• Then there's Bill Clinton -- it wasn't getting the blowjob that got him impeached and censured by the bar, it was lying about it under oath.
• Scooter Libby, former White House aide.  Obstruction of justice; no charge of any underlying crime.
• Kwame Kilpatrick, the former mayor of Detroit.  Lied under oath about sending text messages to his aide.
• Mark Fuhrman, former LAPD cop involved in the first O.J. Simpson murder investigation.
• Lil' Kim, the rapper.  Lied about her friends being involved in a shooting.
• Marion Jones, the athlete.  Barry Bonds, too.  Lying about using steroids.
• Martha Stewart, Wall Street maven and icon to anal-retentive WASP housewives everywhere.  Insider trading charges dismissed, only obstruction of justice claims were actually prosecuted.
• Just yesterday, Rod Blagojevich.  Hung jury on 23 of 24 counts, and the only conviction the most obvious and transparent of all lies to the FBI, a lie which would not have been told had Blago followed the most rudimentary pieces of advice available from any criminal defense attorney anywhere -- don't talk to the cops.
• And coming up soon:  Roger Clemens.  The Rocket?  Really?  Damn.

See, if you don't talk to the cops, they can't say afterwards that you lied to them.  Even if everyone already knows that you put a U.S. Senate seat up for auction on eBay.

What Obama Hath Wrought

To say that the Presidency of Barack Obama has been a disaster from a governmental restraint perspective is the understatement of the century.  Granted, the century is still young.  But can anyone doubt that Terry Michael's claims that libertarians should have endorsed and got behind Obama have been, at best, demonstrated as almost exactly wrong.  Yes, there are progressives condemning Obama as too conservative and conservatives condemning him as too liberal, but both are missing the point.

President Barack Obama is a statist, whose real agenda is maximizing the power of the national government and in particular that of the executive branch.  His real agenda for the direction of American government is a continuation, if not an acceleration, of the process begun under George W. Bush, a process with its roots in the creation of the Department of Homeland Security and Medicare Part D, which came to full flower in the bipartisan bank bailouts of 2008 and the government buyout of General Motors and Chrysler, and reached a triumph with the health care reform law.

Just like his predecessor -- no, even more callously and crassly than his predecessor -- Obama has suborned compliance with the law to his own political advantage.  Consider, for instance, this interview with an editor at the Associated Press concerning the Obama White House's attitude towards the Freedom of Information Act:

...shortly after President Obama took office, the department had instituted a highly unusual policy that is unprecedented at other federal agencies in which many hundreds of FOIA requests that had been submitted by members of the media, citizens, advocacy groups, members of Congress were being vetted by political staff who didn't know anything about the Freedom of Information Act.

They were allowing the political staff to govern the release of the information. Nothing could be released until the political advisers agree that it was okay to send it out the door. [¶] ... either the political staff, the senior staff in Secretary Napolitano's office were dictating which releases could be disclosed to the public and to the media and to the members of Congress, frankly, and when they could be disclosed.

[Interviewer Q:] But you're saying that they vetted the people who are making the requests. They were looking at the backgrounds of those people?

[A:] The documents that we got described in remarkable detail a process by which the FOIA staff, the career staff at the Department of Homeland Security were instructed to provide, along with a synopsis of the request for information, detailed information about where the person lived, who it was, was it a reporter, was it not, was it an advocacy organization, what was the interest of the advocacy organization. All of this is highly, highly unusual under the act.

In other words, who you were and where you stood politically affected what information the government would release, when it would release it to you, and what portions of it would be redacted. To be fair, the interview goes on to suggest that this policy has been changed and depoliticized somewhat. But the fact that it even occurred to someone to suborn the FOIA process to political considerations demonstrates that the law is viewed as an obstacle to achieving political goals.

And why shouldn't they view the law as an obstacle and not a goal? Obama and the Obamamen view the Constitution as an obstacle rather than a goal. The Fourth Amendment, for instance, is just as much an inconvenience to Obama and his security personnel as it was to Bush and the Bushmen, and their solution is the same -- get private companies, unbounded by the Fourth Amendment, to do all the government's without-good-cause spying on American citizens by proxy.  And Obama and his legislative minions have taken Bush's national security claims further than Bush ever did -- reserving the right to summarily execute an American citizen abroad who is accused* of aiding al-Qaeda, and what's more, making it a crime to offer that American citizen the assistance of counsel.  He has even left truck-sized loopholes in his own orders that continue to authorize the use of torture of prisoners in American custody.**

These things should not make you feel better that Obama is protecting our freedoms and our way of life.  These are attacks on our freedoms and our way of life.  Just like George Bush did before him.  What's worse, these attacks come from within our nation, within our government, come wrapped in the flag to make dissent and criticism of them appear unpatriotic and risky, and because they come from a Democratic President rather than a Republican one, leave the political left of the country largely silent in a damning exposure of their hypocrisy.  Not that the political right comes off much better in my analysis; they loudly condemn Obama doing today exactly the same sort of thing that they cheered Bush on for doing two years ago and the commitment of the "tea party movement" to meaningfully reducing the government's powers can be relied upon only for so long as the President of the United States is not a Republican, at which point we're back to the partisan-polarized dialogue about government power we had going in 2007.

There are meaningful and important differences between America's two political parties.  But I have come closer to thinking that the differences are not so important as the similarities.  There is no significant political organization in America devoted to individual freedom and restraining the power of government.  There is no significant political organization in America focused on the reduction of our government's spending deficit, much less elimination of its debt.  For too long we have allowed fallacious arguments about "the other guy" to distract us from the fact that the people entrusted with safeguarding our Constitution have been the ones subverting it.  "Yeah, but that other guy is really a bad dude and we should be scared of him!" is not a valid rebuttal to

Osama bin Laden masterminded the destruction of some very large buildings and the deaths of over three thousand people, which was an awful thing.  But as awful as it was, America survived that attack.  America was and is stronger than that.  As long as we are a free people, we always will be.  It is only from within, and not from without, that America can truly be defeated.  And the ones who possess the power to defeat America are the ones who ought to be leading it.  America will not be defeated on a battlefield or a chess match.  It will be defeated if and when it morphs into something new and different from what it has been.  That is why we should beware of efforts to change the definition of what an "American" really is.  That is why we should be educated and vigilant and principled with regards to how our government conducts itself.  And so far, my verdict is that we are still at risk.


* Probably correctly, I will stipulate.  That's not the point.
**  I've said it before and I'll say it again -- the rule should be "No torture.  Ever."

Actually Hardly Surprising News

One of the big motivating reasons offered to justify the controversial "new" law concerning immigration in Arizona is the fear that undocumented aliens are perpetrating a wave of crime, particularly violent crime, upon hapless Arizonans.  The Feds are letting all these criminals in!  Burglaries, thefts, rapes, kidnappings, and murders are all used as indicators of the many problems these outlaw border-crossers bring with them.

Well, in one sense of the word, that is undeniably true.  A person who is not a citizen of the United States and enters the country for more than a very brief visit without a passport, visa, work permit, or other documentation is violating our laws and by definition is a criminal.  And there's something to be said for such a person -- who is already on the wrong side of the law -- being impelled into a culture of lawlessness that does, in fact, breed the kind of crime that Arizonans are being told has come to plague their state.

But the signal for the critical thinker to dust off the bullshit meter is the reliance on scare words and anecdotes rather than on statistical data.  Because when you look at the statistics, crime is down in Arizona. Overall, from 2004 to 2008, crime went down down by 23% and violent crime went down by 11%. This compared to a population that grew at a rate more than three times the national average and had a higher percentage of young people and a smaller percentage of women than the national average. Of course, Arizona can only take so much credit for this; crime is down nationally and continues to go down. It hasn't gone away, in Arizona or elsewhere, but there is less of it now than there was five years ago.

Statistics never tell the whole story, but they do frame out the big picture. If you personally are the victim of crime, the statistics don't matter a damned bit. But laws shouldn't be made and justified based on anecdotes; ideally they should address real problems. Arizonans have been asked to endorse this law, and have done so, based on the idea that they are under siege by violent criminals. It isn't true. Not even the bit about the kidnappings -- nearly all of them are related to the drug trade, so if you aren't involved in the drug trade, you aren't any more at risk of being kidnapped in Phoenix than you are in Minneapolis or Richmond.

Nor is fear of crime the only justification that has been offered for the Arizona law.  The other primary argument about minimizing illegal immigration is that undocumented aliens take jobs from Americans legally entitled to work; that they depress wages because they work outside the system and can be paid less than minimum or prevailing wages for the work they are doing; that they do not recycle their money back in to the larger U.S. economy by buying goods and services here but instead remit a substantial portion of their wages back to other countries.  There is some meat to each of these economic arguments, and although they are simplistic renditions of a more complex reality, these concepts should be considered, at the Federal level, as part of the suite of issues that should be addressed in immigration policy reform.  In my mind, all of these economic arguments suggest that allowing more workers to legally come here and seek work is the right answer.

What isn't the case is that a spike in illegal immigration has caused a crime wave.  The data simply don't support such a claim.

A Poisonous Political Dynamic

Not much more to add to Shaun Martin here.  To be sure, this is a nonviolent offense but one that is sexual in nature -- but I agree that this isn't something that should require a guy to register as a sex offender for the rest of his life.  One wonders if a guy made a sexually suggestive gesture at a woman while at a boozy party, he would have got similar treatment -- or if a woman made a similar gesture at a man.

Probation seems about right for this guy, but getting put on the Megan's Law list does not seem appropriate.  The punishment should fit the crime.

The political dynamic of ever-accelerating punishments is easy to understand.  No legislator, no judge, no prosecutor, wants to be seen as "soft on crime," so they charge not only the maximum plausible offense and lesser-includeds, but then they take it up the next level; they mandate and insist upon harsher and harsher punishments.  This has been going on for generations now, and so when you approach already-tough crime laws, you have to prove that you are tougher than anyone who came before you.  Thus, a crime that in 1950 would have got you probation and a fine winds up being punished with mandatory public service in 1960 and then three to six months in 1970 and then one to two years in 1980 and then two to ten years in 1990 and five to twenty years in 2000 and in 2010, it's a third strike and you've got twenty-five to life.  Same crime the whole time.  Perhaps that's a little dramatic, but you get the idea.

There seems to be tremendous fear and anxiety about crime out there, or at least great political appetite for this "tough on crime" dynamic -- but the fact of the matter is, crime is down and has been going down for the better part of a generation.  As we have fewer and fewer criminals, do we have to be harsher and harsher on them?  Because the escalating one-way street is eventually poisonous to justice.

Sometimes You Really Need A Second Television Set

David Makoeya was a 61-year-old man who lived in Limpopo Province, Republic of South Africa.  Like any sports fan would be, he was excited about the world's biggest sporting event coming to his nation, and he wanted to watch Germany play Australia.

Unfortunately, his wife and two adult children were at home also and they were watching a gospel show which had not yet ended.  Makoeya asked for the remote control to change the TV channel to the Germany game, and was refused.  So he got up to change the channel by hand.

You have now reached the point in Makoeya's story when his wife and two adult children beat him to death, apparently by repeatedly bashing his head against the wall.

There may have been some penalty kicks, too.  I haven't seen the box score yet.

One presumes that the remainder of the family, in addition to being unenthusiastic about soccer, considered themselves to be good Christians, which, after all, is why they wanted to watch the rest of the religious programming rather than the World Cup.  Of course, just because they considered themselves good Christians doesn't mean they quite got the whole "Thou Shalt Not Kill" part of the religion.  And one suspects that there may have been just a little bit more family dysfunction in the mix here than mere religious fanaticism clashing with sports fanaticism.

By the way, Die Mannshaft* defeated the Socceroos, 4:0 in what turns out to have been the highest-scoring game of the tournament so far.

Maybe if it had been the RSA team playing, something could have been worked out.  But for now, the end score looks like it's going to be:

World Cup Fan Nil : Christian TV Show Fans Thirty-Five to Life

*  "Die Mannshaft" means "The Team."  A beautifully creative name from the same beautifully creative nation that gave us Dadaism and inspired the Soviet School of architectural design.

Looks Better This Way

Chris Clarke (Coyote Crossing) visits Sunrise Rock.  No cross.  Enjoy it while it lasts, Chris; eventually, something's going back up there.

Miranda Rights: See Rule One

The Supreme Court today handed down a case in which they made it clear that a criminal suspect must invoke his Miranda rights or they are waived.  While that sounds bad at first blush, on the facts of the case, I can't say the Supremes blew the call.  The basic story is, the arrestee sat silent for nearly three hours without a lawyer in the room, and then when asked, "Do you pray to God to forgive you for shooting that boy down?" and the arrestee then looked away and said "Yes." 

Well, guess what.  That's a waiver of the right to remain silent, and the cops should indeed be able to use that statement in court.  And based almost exclusively on the strength of this one-word confession, the defendant is convicted of first-degree murder, a sentence upheld today.  So what have we learned here?

First, cops are very persistent and sometimes very sneaky about how they get you to waive your rights.  Human beings feel a basic impulse to talk and be social with one another, and here, the cop used nearly three hours of time to deprive the arrestee of that kind of social contact so as to elicit an admission.

Second, particularly if you're religious, beware of appeals to your religiosity, even from those whom you have reason to trust (not that the arrestee had any reason to trust the cop here).  If you adopt religion into your world view, you are voluntarily rendering yourself vulnerable to this sort of mind game.  That's not to say there aren't other kinds of mind games the cop could have played on the defendant here.  But religion provides a a pretty easy mind game for a cop to use.

Third, if you've been convicted based on a confession, you can count on a very skeptical judiciary that will probably labor to uphold your conviction.

And fourth -- particularly if you've been arrested, shut up. Let your lawyer do your talking for you.

The Citizenship Of Negative Rights

A proposal by Senator Joe Lieberman:

It’s time for us to look at whether we want to amend that law [depriving citizenship of those who enlist in foreign militaries against the US] to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.

Lieberman, in other words, would take away a U.S. citizen's rights upon that citizen merely being accused of terrorism. This is populism at its most detestable and frightening.  Had Lieberman at least said that citizenship could be stripped after conviction of such a crime, well, I still wouldn't like that, either, but it would be a little bit better.

After all, if we're talking about people convicted and not merely accused of crimes, well, what exactly does such a person lose?  Life, liberty, or property, obviously; a convicted felon may be imprisoned or fined or executed, depending on the statute authorizing punishment and the crime of which the felon was convicted. That's what the criminal justice system is all about.

A felon loses his franchise; felons are deprived of their right to vote upon conviction. The right to vote is, of course, the right to participate in forming the government, and therefore it is consent to be governed.  When you take away someone's right to vote, you are saying that their consent to be governed is now irrelevant; such a person is a "subject" rather than a "citizen," at least in one sense of the word "citizenship."

Another sense of the word, however, is that a citizen is a "participant in society."  In theory, a felon can go out into the work force and get a job; while getting a good job upon release from prison is difficult for many felons, it is not impossible, particularly if the felon possesses appropriate skills or education.  Felons are not deprived of their property even while incarcerated unless their property is substantially related to the crime of which they were convicted (e.g., drug dealers do not get to retain property rights in their drugs or guns, but unless the government and prove that it was bought with drug money, they can keep their houses and cars). Convicted felons can enter in to contracts. They retain their rights to free speech, free worship, and to petition the courts for redress of grievances, and when they are in court, they get the same due process that would be given to a non-felon in their situation. Soldiers may not be quartered in their houses. Generally, they can get passports (unless they are on parole and the terms of the parole prohibit international travel), and they can travel between the states freely.  Felons, upon release from prison, are in many senses of the word, meaningful participants in larger society.

There are some other rights that felons lose, too.  The ability to own a firearm. The ability to serve on a jury. Some but not all privacy rights; felons can be and often are made to register their residence and periodically report on their activities to law enforcement agencies (e.g., Megan's Law).

Thing is, we do these things to convicted felons already -- we take away rights and civic abilities which we would not and should never tolerate being done to a law-abiding citizen.

Felons also retain certain civic duties. Men under age 40 may be required to register with the Selective Service despite their status as felons (this does not mean the military will want them, but they are still required to register).  They must obey lawful orders of the police and the courts; they must comply with all laws the same as non-felons.  And most importantly, they must pay taxes. (This despite their inability to vote; while we tend to think of this an an exception to the concept of "no taxation without representation" this is not a rational or principled exception but rather an accident of history.)

So if what Lieberman is talking about were things like this, well, it really wouldn't be much of a stretch anyway.  Convicted felons, even upon release from prison, are not really full citizens anyway since, as I've demonstrated by example above, they do not possess the full suite of rights that an unconvicted person does.  But what Lieberman is really talking about are due process, bail, and cruel and unusual punishment. 

But let's also give a thought to the abstract concept of what "rights" are in the first place.  Our Constitution does not speak very much about the rights of the individual, but rather mainly about the extent of the government's ability to exert power.  Political scientists refer to this with phrases like, "Federal constitutional rights are phrased in the negative, not in the affirmative."  A Constitutional right in this nation is the "right" stop the government from doing certain things to you.  Thus, our rights as citizens are phrased as restrictions on what the government can do:  "Congress shall make no law respecting an Establishment of religion..." and "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

So, if Lieberman's proposal is intended to be meaningful, he would expand the government's power, to grant the government power to inflict punishment without due process, without the right to counsel, without availability of the writ of habeas corpus, to impose excessive bail and to inflict cruel and unusual punishment. In the American constitutional scheme, depriving the individual of rights is the same thing as making the government more powerful as to that individual.

Since the "rights" of a citizen are really limits on the power of the government, to not be a citizen means that the government can do certain things to you which it could not do to a citizen. But even people we think of as non-citizens (say, law-abiding tourists from another nation, or a resident alien with a green card) are still beneficiaries of the limits on the powers of the government set forth in the Constitution; and indeed, they like anyone else within the government's power have the ability to petition the courts to enforce those limits on governmental power.

In other words, the government cannot deprive an alien of due process anyway.  The government cannot demand excessive bail from an alien anyway.  The government cannot impose cruel and unusual punishment on an alien anyway.  Stripping someone of their citizenship by statute does not give the government the Constitutional power to do the things Lieberman wants it to be able to do.

What, then, would stripping a convicted terrorist of U.S. citizenship do?  It would not enable the government to deprive the terrorist of life, liberty, or property without due process.  It would not enable the government to hold the person without bail, without assistance of counsel, or otherwise do with this person as it pleased (absent some other circumstance creating an already-existing exception to those legal doctrines).  It would not make extraction of information from such a person easier, more effective, faster, or more reliable.  It would not make securing a conviction against such a person any easier.  It would not make us safer, more secure, wealthier, or more free.

What it would really do, of course, is put Joe Lieberman on record as really, really not liking terrorists. Well, Senator Joe, I'm willing to give you credit for that pretty much just on your say-so. You really don't need to be monkeying with the Constitution to prove it and frankly, I'd rather you didn't.

Mojave Cross Thief Issues Demands

Taking an already-magnified situation* and escalating it, someone claims to be the thief who stole the now-notorious Mojave Cross and has gone so far as to issue demands regarding its return.  He did so in the Desert Dispatch, a local newspaper in Barstow.  The anonymous author of the letter claims to be a veteran and says he will return the cross to someone who promises to put it up on private land after a different and secular style of war memorial is chosen to replace the cross at Sunrise Rock.  Interestingly, he concludes his letter as follows:

...this has happened because as Abraham Lincoln said: 'To stand in silence when they should be protesting makes cowards out of men.' Perhaps this was an inappropriate form of protest if so I humbly request your forgiveness and understanding for the actions that I have taken here.

Sorry, my friend, but forgiveness is not forthcoming from this quarter. You have escalated an already-difficult situation and polarized, rather than reconciled, feelings about that cross. Even though I agree with you that if there was to be a war memorial there, it should have been secular in nature, the Supreme Court ruled otherwise. We don't get to make up the rules ourselves based on our own personal preferences -- we have to submit to the rule of law and this was the decision of the nation's highest court.  Just like I heartily disagreed with the decision of the California voters to pass Proposition 8 but nevertheless submit myself to the rule of law thus created, here again those of us who though the cross represented an Establishment of Christianity over other kinds of religion must seek out a different way to express that belief.  Your decision to express that belief through destruction of a Federal monument is not one that I can support or countenance.

I think one thing to bear in mind is that most of the people who have decided to concern themselves over the Mojave Cross would be better-advised to start caring about the Mojave Preserve from which it was taken.  They don't, of course; it is a hallmark of magical thinking to confuse a symbol of something with the thing itself.  The cross is not Christianity.  The cross is not remembrance of fallen war dead.  It is a symbol of those things, not the things themselves.  But it is this very confusion that causes people to think that the idea of litigation over the placement of a cross on Federal land is an attack on Christianity, it is this very confusion that motivated someone to take the cross down and issue protests about its appropriateness as a war memorial.

I find myself in the position of, to take a more extreme example, an advocate of a separate Palestinian state upon hearing news of a suicide bombing in Israel.  The ostensible goal of the terrorist is to create a Palestinian nation, the same as the political activist, but that does not necessarily mean that the violent means of attempting to effect that political change can be even impliedly endorsed.  Some people might disbelieve that it is possible for person "A" to peacefully and lawfully advocate a goal that person "B" pursues through violent or unlawful means -- and person "A" should both resent the actions of person "B" as counterproductive and should publicly condemn what "B" has done in the interest of advancing the desired cause.  That is the point of this post, and the point of my previous post on this subject.

The fact of the matter is that the only thing this thief has done is to make people who liked the cross on Sunrise Rock more determined than ever before to have a cross on Sunrise Rock.  Along the way, he has caused great embarrassment for those of us who thought there should not have been a cross on Sunrise Rock.  Now, not only do I have to argue that the Supreme Court blew the call, but I also have to disclaim someone who had the arrogance to replace his personal opinion for that of the Supreme Court's.  Thanks for nothing, dude.  Here's what I think you should do -- drop the cross off in front of a National Park Service office somewhere anonymously and go away, then go get a lawyer, and refrain from making any further public statements about the matter.

The cross is not yours and it is not for you to decide its fate.  You have committed a crime.  Your moral duty is to return this property to its rightful and lawful owner, the Federal government, and your legal duty is to thereafter confine your protests concerning the cross to the meaningful and lawful means available to you for thus expressing yourself.


* By "magnified" I refer to the fact that had there not been a high-profile Supreme Court case concerning this cross, literally dozens of people would have noticed that the cross had gone missing; as it is, what would have been a deeply local event has become national news.