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Saturday, September 30, 2006
Cut Off the Head of the Pig Who Says Our Religion "Exalts Violence and Hate" !:
AFP:
French anti-terrorism authorities Friday opened an inquiry into death threats against a philosophy teacher who has been forced into hiding over a newspaper column attacking Islam, legal officials said.
Robert Redeker, 52, is receiving round-the-clock police protection and changing addresses every two days, after publishing an article describing the Koran as a "book of extraordinary violence" and Islam as "a religion which... exalts violence and hate".
He told i-TV television he had received several e-mail threats targeting himself and his wife and three children, and that his photograph and address were available on several Islamist Internet sites.
"There is a very clear map of how to get to my home, with the words: 'This pig must have his head cut off'," he said.
UPDATE: By the way, I don't think that Islam, as such, is necessarily more prone to violence and intolerance than other religions; my own European Jewish ancestors overall likely suffered far more under Christian regimes than my wife's Iraqi Jewish ancestors suffered under Muslim regimes. But the radical, fascistic Islamist movement is to Islam as the radical fascistic "Christian Identity" movement is to Christianity--a perversion of the religion in the name of a supremacist, violent ideology. [Of course, modern Christianity is much more cuddly than modern Islam, but that's a result of secular ideologies, such as separation of church and state, taking hold, thus privatizing religion, not because politicized Christianity is inherently cuddly. For example, it was only one hundred or so years ago that the Tsars stopped kidnapping ten year-old Jewish boys and sending them to the army for twenty years in order to Christianize them, 150 or so years ago that the Pope enthusiastically endorsed taking an Italian Jewish child away from his parents because his Catholic nanny had secretly converted him, and only a couple hundred years earlier that the Thirty Years War fought in the name of sectarian Christianity slaughtered a good percentage of the European population.]
FURTHER UPDATE: My understanding is that modern Islamism, at least its Sunni variation, descends from Muslim Brotherhood ideology, and that the Brotherhood was itself modeled on European fascist movements, thus "fascistic" is an appropriate moniker.
There was a time in world history when Islamic societies were relatively advanced and tolerant, and Christian societies relatively backward, violent, and intolerant. Religions with long written and oral traditions can be used and misused in any number of ways by those who seek to use them for political ends. One commenter mentioned the late Rabbi Meir Kahane, whose movement in Israel was indeed an analogue to Christian Identity. I suppose it's wrong to say that fascistic Islamism is a "perversion" of Islam, because there is no such thing as "official" Islam. Rather, it's one way of interpreting Islam for those who seek to use it to political ends, but, as a practical matter, it's no more an inherent element of Islam than the Inquisition was an inherent element of Christianity. And I get impatient with those who quote the Koran. You can quote the Torah and discover that Judaism is a genocidal religion (at least with regard to the inhabitants of the Land of Israel) that also demands, among other things, executing anyone who violates the Sabbath. And indeed you can find a lunatic fringe that still believes in such things, but the mainstream of the religion has evolved well beyond this. Oral tradition (which itself eventually gets written) has thousands of way to accommodate ancient religious dictate to modern liberal society, if one is inclined to do it. One is left to hope that fascistic versions of Islamic interpretation will lose out largely through internal rejection, and not, as may seem more likely today, through military confrontation with the West.
When Not to Talk to the Media?:
You're the president of the National Association of Realtors, and in the real estate business yourself. The house you've been trying to sell for $1.45 million has been sitting on the market for a year, and you've already moved to a new residence. The agent you hired to sell your house advised you to drop the price, but you refused. Meanwhile, over the last year, nominal prices have gone down, especially on upper-price-range homes, probably at least 10%. So you've lost interest or capital gains on $1.45 million, and you're still trying to get a price that you couldn't get in a stronger market, and that your own agent tells you is unrealistic. Do you give an interview to the Washington Post, explaining all this? I'd say no, but the answer is apparently "yes."
"Quackspertise" in State Courts:
I have an op-ed on this subject in today's Wall Street Journal. The theme is that state courts are lagging well behind federal courts in excluded dubious expert testimony in civil casess. I'll post a link if and when it's available online (those with access to Factiva through their university can find it there).
I use the neologism "quackspertise" as a substitute for "junk science." Becaue the latter only applies only to science, it's a narrower concept than quackspertise, which appliess to any quackery in the guise of expertise.
Friday, September 29, 2006
Ineffectual Eminent Domain "Reform" in California:
California Governor Arnold Schwarzenegger recently signed into law five almost completely ineffectual post-Kelo eminent domain reform laws. Tim Sandefur of the Pacific Legal Foundation has a series of excellent posts that explain in detail why these laws do almost nothing to curb eminent domain abuse in California (here is the first of his five posts).
Unfortunately, as I have explained here, here, and here, the enactment of post-Kelo reform laws that look impressive to the public, but actually achieve nothing, is all too common. Indeed, several of the subterfuges in the new California legislation could have been taken right off my list of "Common Problems in Post-Kelo Reform Legislation." A particularly serious problem in the California law is the fact that local governments are still permitted to condemn "blighted" property under a definition of blight that is broad enough to encompass almost any neighborhood. As I explain in a recent Legal Times article, this pitfall is one that bedevils post-Kelo reforms efforts in many states.
Quoting myself is rarely a good idea. But what I said in June about President Bush's equally vacuous executive order on takings also applies to the new California laws:
Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved; indeed, I suspect that in some cases that is part of their purpose . . . Sometimes, a bogus reform is worse than no reform at all.
Finally, I do have a minor quibble with Tim's analysis of Senate Bill 1650, the one part of the new California legislative package that he concludes may have "some actual teeth." This Bill requires that condemned land "only be used for the public use stated in the resolution unless the governing body...adopts a resolution authorizing a different use...by a vote of at least two-thirds of all members of the governing body." As Tim explains, the purpose of this provision is to prevent the use of bait-and-switch tactics under which the government can justify a condemnation in court by claiming a legally unassailable public use and then turn around and use the property for more dubious purposes.
I agree that Bill 1650 provides a marginal increase in protection for property owners. However, these kinds of abuses are to a large extent already forbidden by the Kelo decision, where the Supreme Court reiterated the longstanding rule that the government is "no[t] . . . .allowed to take property under the mere pretext of a public purpose, when [the] actual purpose was to bestow a private benefit." Kelo v. City of New London, 125 S.Ct. 2655, 2662 (2005). Bill 1650 provides a very small increment of added protection for property rights (it apparently covers sincere as well as purely pretextual changes in the use of condemned property), but basically it merely codifies the rule against pretextual takings contained in Kelo and earlier Supreme Court cases. In any event, given the very broad range of condemnations permitted under California law (including in the blight provisions of the new legislation noted above), local governments won't have to resort to pretexts in order to condemn any property they want for virtually any purpose.
Legal Blogs by Topic:
Ian Best (3L Epiphany) provides yet another useful service:
This 60-page directory provides a searchable database for topical categories found on legal blogs. The ‘find’ (Control-F) function in Microsoft Word can be used to look up various topics within the document. For example:
A search for “electronic discovery” leads to the following blogs: CompanyCounselor, DennisKennedy.com, Electronic Discovery and Evidence, Electronic Discovery Law, Gahtan’s Technology and Internet Law Blog, Jeff Beard's Lawtech Guru Blog, and Jim Calloway's Law Practice Tips. A search for “First Amendment” leads to the following blogs: 43(B)log, Concurring Opinions, Criminal Appeal, FSU College of Law Library Blog, Hounded, Cowed, and Badgered, InternetCases.com, LibraryLaw Blog, PrawfsBlawg, Privacy and Security Law Blog, The Technology Liberation Front, and The Trademark Blog. A search for “Iraq” leads to the following blogs: Calblog, Discourse.net, Grotian Moment: The Saddam Hussein Trial Blog, Is That Legal?, Jus in Bello, Southern Appeal, TalkLeft, and Transitional Justice Forum.
Go to the post for a link to the directory.
"America's Favorite Dictator":
Robert Pollock reports on America's troubling relationship with Pakistani General Pervez Musharraf. While the U.S. pushes for greater democracy in the Middle East, it is conspicuously silent about undemocratic "allies" in the region.
Even among the "neocon" architects of President Bush's democracy-promotion agenda it's hard to find an unkind word about Gen. Musharraf . . . . Behind this bipartisan support--or at least acceptance--is Pakistan's nuclear arsenal, and the perception that Gen. Musharraf is the only thing standing in the way of its takeover by a radical Islamic government. But there are good reasons to doubt this perception, and to suspect that allowing a permanent "Musharraf Exception" to the democracy agenda will do more harm than good.
On the plus side of the Musharraf ledger is, indeed, the obvious fact that the man with the keys to Pakistan's bombs is not a raving Islamic fanatic. He has been an ally--of convenience, at least--in the fight against al Qaeda. And his rule, while autocratic, is not oppressive. With a smart and vibrant free press, Pakistan undoubtedly passes what Condoleezza Rice has called the "public square test"--a fancy way of saying you can speak your mind without fear of being carted away by the cops.
At the same time, however, Gen. Musharraf suffers from his lack of legitimacy among the secular classes who have run Pakistan's democratic governments in the past, and who would almost surely win if another free poll is held. The Islamists got only 11% in the last parliamentary election, but the general is increasingly courting them as he attempts to hold power--which may be one reason his antiterror efforts haven't included any attempts to crack down on the madrassas. For the same reason, Pakistan's efforts to control Taliban elements operating within its borders seem half-hearted. . . .
. . . let's have no illusions about Pervez Musharraf. He took power illegitimately in a country with some history of democracy, however imperfect. And now he seems to be in no hurry to give it up. The Bush Doctrine can survive the Musharraf Exception over the short run. But over the longer term, the credibility of our efforts to address the root causes of terror will require nudging Pakistan, too, back toward the democratic path.
Are politically moderate judges and law clerks better?
In his recent Green Bag article, discussed in Orin Kerr's post, Prof. David Garrow, one of the country's top Supreme Court scholars, laments the fact Supreme Court clerks increasing come from court of appeals clerkships with "exceptionally liberal or highly conservative" 'feeder' judges, rather than with "equally well-respected but ideologically moderate jurists."
The implication is that "ideologically moderate" clerks and justice are for some reason preferable to those who are "exceptionally liberal or highly conservative." Contra Garrow, I don't see any reason to believe this to be true.
One possible reason to prefer moderate clerks and judges is that they are more likely to reach correct decisions. This, however, is definitely not Garrow's argument. After all, Garrow's own views on the substantive constitutional law are far from being moderate, as one can see in his scholarly work on substantive legal doctrine; see, for example, his well-known book on judicial protection of abortion and sexual freedom. This is not a criticism of Garrow (my own views are no more moderate than his are), but it does close off the most obvious possible reason for favoring centrist judges and clerks. Indeed, Garrow's preference for centrist clerks seems, ironically, to be a preference against clerks who share his own strongly liberal political and legal views!
Instead of relying on the supposed correctness of their views, Garrow's preference for centrist clerks seems to be based on a belief that ideologically more extreme clerks (and possibly judges as well) are more likely to allow "disreputably partisan" considerations to influence their decisionmaking. If I interpret his argument correctly, Garrow is suggesting that committed liberals and conservatives are more likely to allow their policy views to influence their interpretation of the law than centrists.
I see little reason to believe this. Garrow's analysis implicitly conflates having moderate views with not having any ideological commitments at all. In reality, however, moderates do have political views and partisan loyalties, and these views and loyalties may be just as strongly held as those of liberals, conservatives, and libertarians. In cases where the strict adherence to the law leads to ideologically extreme results, moderates may well be tempted to follow their policy preferences instead of the law - just as conservatives and liberals might in cases where the law leads to results they dislike.
Indeed, in two important ways moderate jurists may be more prone to ideological judging than more extreme ones. First, moderate judges such as Justices O'Connor and Kennedy, are more likely to favor complex balancing tests than strong liberals and conservatives, who are more likely to favor bright line rules. Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do.
Second, I suspect that moderates are less likely than comparative extremists to realize that their political preferences are the products of a contestable ideology rather than of simple, nonideological "common sense." Indeed, Garrow's own article partially endorses this fallacy, to the extent that he assumes that moderate views are, by nature, less "ideological" than extreme ones. Of course, if you believe that your views are just common-sense truths that only extremist wingnuts/moonbats could disagree with, you are less likely to be hesitant about imposing them on others through the use of judicial power.
No More Raw Milk in Ohio:
The Ohio Department of Agriculture is clamping down on dairy farmers who enter into "herd-share" agreements in an effort to evade the ban on the sale of raw milk.
The state's Department of Agriculture revoked a Darke County farmer's milk producers license this week after finding that its "herd-share" agreement to distribute raw milk was an attempt to evade laws against selling the unpasteurized product. Officials announced the decision Thursday.
Raw milk advocates have said they established herd-share programs with farmers to circumvent the law. The arrangement allows people to buy portions of cows on a farm and then pay a boarding or management fee; in exchange, shareholders receive dairy products.
State law does not prohibit individuals from drinking raw milk taken from their own cows. The law does not address the issue of herd-share contracts.
But Ohio Agriculture Director Fred Daily wrote in this week's revocation decision that the state intended its ban on raw milk sales to apply across the board: "To hold otherwise would defeat the intent of the legislature to protect the public health," Daily wrote.
I am not a fan of raw milk myself, but I hardly think the state needs to go after those who are. I also think it is a reasonable assumption that anyone who goes through the trouble of entering a "herd-share" agreement is sufficiently aware of the risks of raw milk consumption that they do not need the state's "protection" from their own choices in this regard.
Torture and Nuclear War:
As I've noted before, there are lots of things I don't blog about because I know little about them, I find them difficult, and they're quite important. Since I know little about them, I'm not sure I have much to add (but I have lots of opportunities to screw up). Since they're difficult, I don't think I can just give a quick answer from general principles. And since they're important, there's a good deal at stake in getting it right: An off-hand comment that might be right or might be wrong might cut it for a trivia question, but not for important issues. That's one reason that I've blogged very little about torture as a means of extracting information from suspected terrorists; the chief exceptions are here, here, and here.
A lot of comments criticizing my (and others') not talking about the subject respond by challenging the "difficulty" element: Torture -- often defined to include a wide range of harsh interrogation techniques -- is just patently depraved, the argument goes; the ends don't justify the means; any decent person should be able to see that and denounce provisions that allow such techniques; end of story.
But for me, this easy moralism just doesn't cut it. Perhaps after a great deal of thinking and research I might come around to this view. But I'm not prepared to accept it as a categorical, supposedly obvious moral assertion. (The theory that the means are sure to be ineffective is a separate matter. For reasons I noted in the posts linked to above, I'm unpersuaded of that as an empirical matter.)
Here's what I keep coming back to in my head. I still remember, as I'm sure most of you do, the nuclear balance of terror. (It still exists today, but it's a less prominent issue than it was when I first started noticing the world.) The Soviets had nuclear weapons pointed at us, which included both our military installations and our cities. We had nuclear weapons pointed at their military installations and their cities. It was understood that if they annihilated one of our cities, we'd annihilate one of theirs.
There was none of the carefully calibrated attack-only-military-targets approaches that we likely can afford to use in small wars. There was no serious provision for minimizing civilian casualties. One can come up with some defenses about most cities containing at least some militarily significant targets and the like, but let's face it: The real mechanism of deterrence was "you kill our people, we'll kill your people," both as to all-out nuclear attack and as to a more controlled "take out one city at a time until the other guy blinks" strategy. It was understood -- by Carter as well as by Reagan, by Kennedy as well as by Nixon -- that to keep the peace, we had to be prepared to slaughter millions of Soviet civilians.
A few people did talk about unilateral disarmament, the only real way of avoiding the commitment to mass-butchery-should-the-need-arise. I don't think most of us took them seriously, for obvious reasons. Reagan, as I recall, did push missile defense as a means of avoiding the balance of terror, but even if you think that missile defense might work, the Reagan Administration certainly supported the balance of terror as acceptable doctrine until missile defense could be created. One can imagine some alternative tactics, such as a pure counterforce rather than countervalue strategy -- if you bomb us, including our civilians, we'll only bomb your military targets. But I highly doubt that it would have worked.
Would you say: Look, killing millions of civilians is just patently depraved, the ends don't justify the means, any decent person should be able to see that and denounce strategies that rely on the commitment to use such techniques; end of story? I know I didn't. Maybe I should have. Maybe after a good deal of reflection and research I would conclude that such a strategy should have been abandoned. But, boy, I'm not prepared to just say that as a matter of general moral principles, no matter how obviously heinous nuclear bombing of civilian targets might be.
Now I don't want to overstate the analogy: The U.S.-Soviet balance of terror involved the willingness to do a vastly horrific act, in order to deter a vast harm, though fortunately a willingness that didn't have to be acted on. Harsh interrogation of detainees involves the actual doing of many bad things, in order to prevent a lesser harm, but the bad things are much less horrific than a retaliatory nuclear bombing.
There are, I'm sure, lots of other differences. It may be that careful study would lead one to different answers in these two cases. But once our innocence is lost by our willingness to at least contemplate the balance of terror, it becomes very hard for me to just operate on a hard-line "I don't need to hear a lot of facts or arguments, the ends don't justify the means and that's that" approach.
Cabs and Alcohol:
The Minneapolis Star Tribune reports:
About three-quarters of the 900 taxi drivers at Minneapolis-St. Paul International Airport are Somalis, many of them Muslim. And about three times each day, would-be customers are refused taxi service when a driver sees they're carrying alcohol.
"It's become a significant customer-service issue," said Patrick Hogan, a spokesman for the Metropolitan Airports Commission, on Thursday.
Now the airports commission has a solution: color-coding the lights on the taxi roofs to indicate whether a driver will accept a booze-toting fare. The actual colors haven't been decided on yet, but commission officials met Thursday with representatives of the taxi drivers and the Minnesota chapter of the Muslim American Society to continue working on the plan.
The airports commission has struggled with the issue for several years. Alcohol is a serious concern for devout Muslims, said Hassan Mohamud, an imam and vice president of the society. The Qur'an, Islam's holy book, strictly forbids buying, selling, drinking or carrying alcohol.
The observant drivers object only to transporting openly displayed alcohol, said Ali Culed, a Somali Muslim who's been driving an airport cab for eight years. They won't search passengers or quiz them about what's in their bags.
"It is a religious issue," Culed said. "I cannot force anybody to change their belief, but not in my cab. I don't want the guilt. I just want to be an innocent person." ...
The color-coding sounds like a good solution -- it lets cab drivers choose how to run their businesses, and it lets the airport provide its customers with the service they want. One can certainly imagine hypothetical situations in which such schemes would become too difficult to use; and I suspect that heavy government regulation of taxicabs (which I take it is present in Minneapolis, as it is in many other cities) causes extra problems here, because it sets up a barrier to entry. But given the situation as it is, some such mutual accommodation strikes me as quite sensible.
What Hath Hamdan Wrought?
Jack Balkin has written this very interesting post on the just-passed Military Commissions Act of 2006. As he notes, the MCA is the political branches' response to the Supreme Court's Hamdan decision, but the MCA is unlikely to be the last word on the subject, as many provisions will be litigated. As Balkin writes: "Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either."
Defining the Limits of Interrogation:
My colleague, Amos Guiora, director of the Institute for Global Security Law and Policy at Case thinks that too little attention has been paid to the precise limits of interrogation techniques that can be used on terrorist suspects. "Elusive concepts are a recipe for disaster," he argues, so it is necessary to engage in a difficult (and unpleasant) line-drawing effort. This issue is not only a question of morality, but also has practical legal implications for those on the front-line of counter-terror efforts.
Amos had an op-ed in yesterday's Cleveland Plain Dealer outlining his view of the proper boundaries for the interrogation of terrorist suspects. Here's an excerpt: So what is coercion in the context of interrogating terrorists? On one extreme, it precludes torturing the terrorist. Torture is illegal, immoral and does not lead to actionable intelligence.
On the other hand, interrogators must be able to obtain critically needed intelligence to be given to commanders whose mission it is to prevent future attacks. Furthermore, interrogation is necessary as admissible evidence; the result of a lawful interrogation is required for trying terrorists.
To that end, interrogators may subject terrorist suspects in the interrogation setting to the following lawful measures: 1) disruption of the sleep cycle; 2) sitting in uncomfortable positions; 3) playing loud, annoying music; 4) placing a hood, for disorientation purposes, over their heads; 5) modulating the room temperature.
Implementation of these five measures requires both written guidelines and authorization by senior officials. Accountability and command responsibility are absolute requirements. Amos' perspective is no-doubt influenced by his 19 years in the Israeli Defense Forces, where he had far more direct experience with counter-terrorism operations than anyone else I have seen expound on this topic. He has devoted years to thinking about these issues, and understands (in away that most academics do not) the practical implications of different policies and approaches. These are not just abstract moral questions, and the answers have real-world consequences.
As I understand Amos' view, he believes techniques that disorient a suspect are acceptable (if done pursuant to clear guidelines), but anything that would cause actual physical or psychological harm is off limits. Does Amos strike the right balance? I am not sure. On the one hand, I do not believe foreign terrorist suspects are entitled to the same treatment as criminal suspects. On the other hand, I am uncomfortable with the prospect of subjecting innocents who are wrongly detained to such techniques -- which can be significantly more severe than the above description might suggest. It is easy to proclaim one's opposition to "torture." It is more difficult to delineate those interrogation techniques that should or should not be allowed in the counter-terrorism context, especially once one gets beyond the extreme hypotheticals (ticking bombs, etc.) found more often on the set of "24" than in the real world. I find this to be a difficult question (as, I gather, do those who make broad pronouncements on the issue without engaging in the particulars), so I appreciate the perspectives of those, like Amos, who have wrestled with these questions in a real-life context.
Thursday, September 28, 2006
Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
Orin Kerr's post and the comments to it raise the question of why we haven't blogged about the detainee bill and the debate over torture. I can't speak for anyone else, but in my case, I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.
Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.
For these reasons, I try to limit my posts on political issues to the following three categories:
1. Issues on which I am an expert (primarily political participation, federalism, and property rights). This is where I have the greatest chance of making an original contribution.
2. Issues on which I'm not officially an expert, but have a lot of knowledge because I follow them closely (i.e. - far more closely than merely reading occasional articles about them in the media or online).
3. Rare cases that fall outside of 1 and 2, where I come up with an original point that other commentators have for some reason ignored.
The issues of torture and detention do not fall into any of these three categories, so I don't blog about them.
The case of torture is a good example of the limits of my knowledge. For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it. In any event, I don't think that arguments about intrinsic morality are enough to resolve the issue. To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians. A second important question is that of how much valuable information can really be obtained through torture that we could not get otherwise. Because I don't know enough to give a compelling answer to these two crucial questions, I don't have anything useful to contribute to the debate over the issue.
UPDATE: The one relevant point that I think has been neglected in the debate is the impact on our enemies' incentive to surrender. If enemy fighters believe they will be tortured if captured, they have a stronger incentive to fight to the death rather than give up; none of the articles I've read on the subject considers this aspect of the matter, though perhaps someone has written a piece on it that I have missed. This consideration counsels against the use of torture, or at least in favor of strictly limiting that use. But I don't think it's enough to resolve the debate by itself. Related Posts (on one page): - Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
- The Military Commissions Bill, and A Note on Blogging Topics:
The Military Commissions Bill, and A Note on Blogging Topics:
Congress is very close to passing a bill on military commissions to try terrorist suspects, which amounts to Congress's response to Hamdan v. Rumfeld. The bill text is here. In the comment thread in a recent post, a number of commenters took the VC's blogggers to task for not blogging about the bill and its predecessors. Here's a taste: (1) Scrolling down through the Volokh Conspiracy over the past few days, I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States." . . . . Don't you lawyers have anything at all to say about this? Any opinions at all?
(2) Yeah. EV can post all he wants about "just because we ignore the subject doesn't mean we don't care," but it wears a little thin sometimes.
(3) I agree with Frances, Anderson, and Commenterlein. The lack of comment is amazing. Yes, bloggers can post on whatever they like, but for a blog concerned with constitutional issues and individual liberties to remain essentially silent on these topics is quite remarkable.
(4) I have to say that I was somewhat surprised, too, that there haven't been more blogging at VC about the "detainee" issues.
(5) Thank you to Frances for making explicit what has bugged me a lot. One view is that VC contributors are faced with an unpleasant bit of cognitive dissonance: how to react when self-styled conservatives fall over themselves to pass a statute authorizing torture, indefinite detention and the aggrandizement of the executive. . . . . But I think that if conservative intellectuals are to have credibility, indeed if conservative ideas are to have any credibility outside of true believers, intellectuals like VC needs to address these bills.
(6) Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill. I can't speak for anyone else, but here are a few thoughts of my own in response. First, I would really like to blog some expert commentary about these bills. But there's a problem: I don't know much about them. I have read what others have said about them, and occasionally link to commentary that seems particularly good (to the extent I can tell). I recently looked over the latest text to get a feel for what the bill is trying to do. But I haven't followed this area closely enough, as I've been busy with other stuff like my book that's about to come out, a few articles I'm writing, some pro bono cases, teaching classes, advising students, moving to Chicago for the semester, blogging about other things, and, well, life. I don't feel comfortable pretending that I know more than I do about the detainee legislation, so I haven't blogged much about it. Plus, from a normative perspective, I always get hung up in this area on deciding what baseline to use. Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges, but it's not clear to me that's right — and not clear to me how to choose between that baseline and others. Then there are all the empirical questions about what techniques actually work, predictive questions like how the trials will work in practice, what the effect to different language in the bill might actually be, what the Supremes might do, what the alternatives are, etc. Some people know the answers to all of these questions, or at least think they do, but I feel a lot less confident. Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.
Pet Law:
A California Court of Appeal decision (People v. Quintero) reverses, on state law grounds, a probation condition requiring that the probationer (who had been convicted of methamphetamine possession) "[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. The court applied the California Supreme Court's test for probation conditions -- "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not related to future criminality'" -- and reasoned that all three elements were satisfied.
The dissent argued that the condition was nonetheless valid because it helped protect the probation officer against surprising encounters with the probationer's possibly dangerous pets. But, much more importantly, the dissent also provided the first judicial citation that I could find to cuteoverload.com.
LEXIS Search Tip:
When searching through law review articles by the author's name, don't use AUTHOR(xxx), which will also find references to xxx in other authors' thank you footnotes. Instead, use NAME(xxx), which will, in my experience, just find xxx in the author's name field.
Supreme Court Docket Reports:
Since Orin mentioned Baker Botts' excellent SCt Today, I thought I'd pass along Mayer, Brown, Rowe & Maw equally (though differently) excellent Supreme Court Docket Report. (Mayer is the firm at which I'm an academic affiliate.) If you want to subscribe to their e-mail delivery service, just e-mail SupremeCourtDocket at mayerbrownrowe.com.
English Charges Against Anti-Homosexuality Leafletter Dropped:
The Telegraph (UK) reports:
Stephen Green, the national director of Christian Voice, was arrested at the Mardi Gras festival in Cardiff earlier this month after distributing hundreds of leaflets entitled “Same-sex love – Same-sex sex: What does the Bible say?”
Green, 54, pleaded not guilty on Sept 6 to using threatening words or behaviour likely to cause harassment or distress.
Today, at Cardiff magistrates’ court, the Crown Prosecution Service said it would not proceed due to “insufficient evidence.” ...
A CPS spokesman said: “The reviewing lawyer took into account decisions in other cases and whether the contents of the leaflets which were quotes from the Bible could be said to be insulting.” ...
Seems to me that some of the quotes from the Bible (e.g., calling same-sex sex an "abomination" or "vile affections") might indeed "be said to be insulting." Yet leaflets containing insulting ideas are an important part of public debate in a democracy as well as leaflets containing inoffensive ideas.
Thanks to Eric Rassbach for the pointer.
Hear the Moral Testimony of the Immune System:
I was just reading leading conservative bioethicist Leon Kass on organ transplants — he reluctantly approves of them generally, but categorically rejects any compensation for organ providers (compensation for the organ transplanters is just fine). Here's one paragraph that particularly struck me; recall that this isn't just psychological description, but part of a broader moral argument:
Regarding the recipients of transplantation, there is some primordial revulsion over confusion of personal identity, implicit in the thought of walking around with someone else's liver or heart. To be sure, for most recipients, life with mixed identity is vastly preferable to the alternative, and the trade is easily accepted. Also, the alien additions are tucked safely inside, hidden from sight. Yet transplantation as such — especially of vital organs — troubles the easygoing presumption of self-in-body, and ceases to do so only if one comes to accept a strict person-body dualism or adopts, against the testimony of one's own lived experience, the proposition that a person is or lives only in his brain-and-or-mind. Even the silent body speaks up to oppose transplantation, in the name of integrity, selfhood, and identity: its immune system, which protects the body against all foreign intruders, naturally rejects tissues and organs transplanted from another body.
This is poetry, it seems to me, not argument. The images and concepts are vivid enough, but the logical connections seem to be to missing. The self-consciously self-contradictory metaphor of "the silent body speaks up" exemplifies it best. If you really "listen" to what the silent body "says," you'll hear it speaking up against:
All major surgery, which causes excruciating pain and is usually sure to kill the patient without special care being taken to overcome the body's natural patterns of susceptibility to infection, shock, blood loss, and so on (much like the care taken to overcome the body's immune system). Childbirth, which likewise causes excruciating pain and often kills the patient without special — and in many ways highly unnatural — modern medical treatment. Blood transfusions, which likewise trigger the immune system at least if one doesn't take care to do proper blood typing — though in some ethnically highly homogeneous groups that's not a problem; is the silent body speaking up against racial mixing?
To the extent the body "speaks," it doesn't speak about what is right. It speaks about what is likely to happen. We should "listen" to it, but in order to make our interventions more effective, not in order to decide what is morally right or wrong.
This is, I think, a variant of the Is-Ought problem, with a dollop of coming to believe one's own metaphors. A procedure is physically dangerous; therefore it ought to be seen as morally troubling. A procedure is revolting to many people (as are prostate exams, I suppose, or changing diapers); therefore we ought to assume that it's presumptively improper. If we'd consistently adopted such an approach, in what century would medicine be stranded?
UPDATE: My favorite comment so far, from commenter Dave Griffith: "As someone with an auto-immune problem, I presumably am passing histological moral judgements against myself. I'll admit it's probably a fair cop in my case, but that's beside the point."
Perspectives on Prosecuting the Press:
The latest issue of the National Security Law Report, published by the ABA Standing Committee on Law and National Security, is now available online. It includes six essays on whether journalists can or should face prosecution for publishing leaked classified national defense information. The contributors include Geoffrey Stone, Gaberiel Schoenfeld, John Eastman, Kate Martin, Bryan Cunningham, and myself.
A "Do-Nothing" Senate?
The Senate is planning to adjourn this weekend, giving those Senators seeking reelection over a month off to campaign. This is quite early. Indeed, as noted on ConfirmThem, this will be the earliest the Senate has adjourned in an election year in thirty years (if not more). Congress maven Norman Ornstein further observes:
This Congress hit the ground stumbling and has not lifted itself into an upright position. With few accomplishments and an overloaded agenda, it is set to finish its tenure with the fewest number of days in session in our lifetimes, falling well below 100 days this year.
This new modern record is even more staggering when one realizes that more than 25 of those days had no votes scheduled before 6:30 p.m., making them half- or quarter-days at best. The typical workweek in Congress (when there is a week spent in Washington) starts late Tuesday evening and finishes by noon Thursday. No wonder satirist Mark Russell closes many of his shows by telling his audiences what members of Congress tell their colleagues every Wednesday: "Have a nice weekend."
Of course, this is not necessarily a bad thing. I am generally sympathetic to the view that Americans are safer when Congress is out of session. On the other hand, there are matters worthy of further Congressional consideration, from the detainee-treatment and NSA surveillance legislation (which may well keep Congress in schedule later than its leadership had planned) to the confirmation of federal judges (some of whom have been waiting, literally, for years).
Kids Today -- The Arrival of "The Millennials":
Over at law.com, Hofstra Law librarian Tricia Kasting has an essay for law school staff and instructors on the psychology of the new generation of law students, dubbed "The Millennials." According to Kasting, and a lot of high-paid consultants, "Millennials" are the replacement for "Generation X" and are different from the Xers: Millennials are those with birth years 1982 to roughly 2002. They are a larger group than the Boomers, and they are the most diverse generation ever. The core personality traits are: special, sheltered, confident, conventional, team-oriented, achieving and pressured.
Special: have been told they are special all their lives.
Sheltered: kept from harm's way and have highly structured lives.
Confident: see special; they expect good news and believe in themselves.
Conventional: accept social rules.
Team-oriented: they like to work together and keep in contact with peers.
Achieving: see special, confident and team-oriented; they expect to accomplish a lot.
Pressured: much is expected from them.
They have used technology all their lives and are comfortable with it, but they also expect stimulation and dislike mundane work. Mass media has left an impression that work should be fun, be exciting and immediately pay high salaries. Their expectations of achievement and career success are often not be realistic, and without the structure provided by their parents they may be directionless. . . .
They are used to structure and like to have clear defined rules and policies. They respect authority and will generally conform to the rules. A Millennial will protest to authority about a rule they don't like but accept when the reasons are explained. . . .
Millennials are confident and achievement oriented. They expect to do well and accept the services we offer as the natural order. They are not sure how to do something, but are confident they can learn. So here's the question: Are these changes real? I tend to think not, but then I'm pretty skeptical about claims of generational change. My pet theory is that the baby boom generation really was different, and focus on the baby boomers forty years ago created a market for and interest in these sorts of generalizations even if they're not supported by particularly strong evidence. Plus, I would guess that as we get older and relate less to recent college grads, we want to come up with an explanation for that distance that puts the responsibility on them, not us. (In other words, the subtext of such narratives is that if kids today strike you as weird, it's them, not you.) This isn't to say that times don't change; technology can shape social experience, and those growing up with new technologies naturally have a different relationship to it. But I guess I'm pretty skeptical that "the Millennials" are much different from "Generation X," or that "Generation X" was much different from whatever you want to call the generation before that. I tend to think that for the most part, people are just people. Thanks to JD2B.com for the link. UPDATE: I should point out, for the sake of full disclosure, that I am a member of "Generation X." So if you think I'm wrong in this post, please understand that this is the best effort of a slacker with a short attention span who doesn't care about anything and is in search of himself.
Federalist Society panel on Andersen v. King County:
I'll be in Seattle on Monday speaking on a panel entitled, "The Defense of Marriage Act Decision: The State of Same-Sex Marriage After Andersen v. King County." Also on the panel will be lawyers representing the contending sides, Steven O'Ban (pro-DOMA) and Bradley Bagshaw (anti-DOMA). The moderator will be David Postman, a political reporter and columnist for the Seattle Times.
The panel will be at 6:30-8:30 p.m. at the Washington Athletic Club. Cost is $25, with CLE credit. If you want to go, RSVP to Diana Kircheim at 425-453-6206 or dianak@gsklegal.pro. Should be interesting.
The Housing Market and the Economy:
Liz Ann Sonders, Chief Investment Strategist, at Schwab, has an excellent summary, complete with neat charts, of the state of the housing market, the current outlook, and the potential ramifications for the economy as a whole. In short: not a pretty picture. This chart (click for larger view), in particular, is worrisome if one is invested in equities.
Wednesday, September 27, 2006
Text as Obscenity:
The AP reports:
A woman who authorities say ran a Web site that published graphic fictional tales about the torture and sexual abuse of children has been indicted on federal obscenity charges.
"Use of the Internet to distribute obscene stories like these not only violates federal law, but also emboldens sex offenders who would target children," U.S. Attorney Mary Beth Buchanan said Wednesday in announcing the charges against Karen Fletcher, 54.
Excerpts of her stories were available to all visitors to her Web site, while others paid to read whole stories, prosecutors said....
It sounds like the stories were pure text, with no pictures (or at least no sexually themed pictures). Obscenity prosecutions based on text are very rare, but they are in theory permissible under the "describes" aspect of the famous Miller v. California obscenity test: A work is unprotected if
"the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest," and "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. United States, 431 U.S. 291 (1977)], [c] sexual conduct specifically defined by the applicable state law,” and "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value."
Thanks to reader Michael Bavli for the pointer.
New York Times Ombudsman on "Balanced" Coverage of Israel-Lebanon Conflict:
I missed this when it first came out:
While fairness can't be determined solely by the numbers of pictures in a situation like this, there is one statistic worth keeping in mind: the death toll. Nearly 1,150 Lebanese died, most of them civilians [actually, we have no idea how many of the "civilians" were actually Hizbollah fighters]. This is more than seven times as many as the roughly 150 Israelis, mostly soldiers, who died, according to The Times’s latest estimates. (One factor, of course, was that Israel's population apparently had more access to shelters that offered greater protection from Hezbollah's bombs.)
The death toll appeared to relate closely to what was happening in the conflict [only, as I discuss below, if the primary focus of war coverage is supposed to be short-term civilian suffering], and therefore to provide a reasonable measure for shaping — and subsequently evaluating — the coverage. Indeed, Times editors responsible for both photography and news articles had those cumulative numbers of the deaths on each side in their minds each day. "We were totally aware," said Michele McNally, the assistant managing editor for photography. "Absolutely."
This focus on the death toll led me to review the number of Times pictures depicting corpses and coffins. There were about eight times as many photographs of Lebanese as of Israelis, a ratio roughly comparable to the overall one for deaths during the conflict. "We try to reflect what happens on the ground," said Susan Chira, the foreign editor. "We are extremely conscious of the death tolls. It would be unfair to truth to do otherwise."
Estimates of the relative physical damage weren't so readily available to Times editors as the conflict unfolded. But I'm comfortable with the editors' estimates that the relative physical destruction was even more disproportionate than the death tolls. The pictures in the paper reflected that. Eight times as many pictures of physical damage in Lebanon, compared with those of destruction in Israel, appeared on Page 1. The ratio for all such photographs used in the coverage shrank to three to one, but the pictures from Lebanon that ran inside the paper tended to be larger.
What an odd way to justify the "fairness" of media coverage! For one thing, it suggests that the Times' coverage of the Iraq war has been grossly unfair to the Iraqis, or, if you prefer, the Iraqi "resistance."
For that matter, consider the "unfairness" of the Times' coverage of 9/11 and the war in Afghanistan. We certainly got more pictures of "American suffering" because of 9/11 than of suffering in Afghanistan because of NATO military action.
Sure, the Times is an American paper, and thus gives the U.S. a "home field advantage," but that just raises the question of why Israel, a close American ally, fighting Hizbollah, a sworn American enemy, doesn't get at least a less extreme version of the same sort of advantage.
For another thing, the ombudsman later acknowledges that these photos were completely acontextual, because the Times almost never carried any photos of Hizbollah forces:
Times readers got hardly any photographs of Hezbollah fighters. Photographers were actively discouraged [what a euphemism for "were threatened with death"!] from taking pictures of them, Ms. McNally said. I found only two pictures that portrayed Hezbollah fighters; both ran on Aug. 10, and both showed the difficulty the guerrillas had in crossing the Litani River after Israeli attacks had put bridges out of commission. The two fighters in the front-page photo were wounded.
Meanwhile, although Israel didn't allow photographers to accompany its soldiers in the field, the Times managed to run quite a few photos of Israeli soldiers. The ombudsman says that this was for "balance," but it strikes me as the opposite, a propaganda victory for Hizbollah. The visual image Times' readers received, after all, was of the Lebanese civilian population suffering at a far greater rate than the Israeli civilian population, with pictures of Israeli soldiers doing the damage, and no pictures of Hizbollah forces (not to mention Syrian and Iranian assistants) at all--much less pictures of them hiding among the civilian population--save for two photos of wounded soldiers, which would naturally raise the basic human sympathy of many readers.
Perhaps the most disturbing comment in the column is this: "editors had to shape their photographic coverage, however, with the knowledge that the access of Times photographers to the death and suffering on each side was not equal." It reflects a mentality, that is present in the entire column, that the essence of war is the suffering it creates on each side while the war is going on. The reasons for the war, the implications of victory or defeat for each side, the moral status of the combatants (an issue the ombudsman says is irrelevant!), and so forth, is at best a sideshow. I'd be the first to admit that it would be difficult, if not impossible, to use photographs to illustrate these complexities. But to the extent newspaper photographs play on visceral, but acontextual, emotional reactions of readers, the Times should at least be contrite about this, rather than bragging of it's "balance" because its photos reflect a given ratio of casualties. Moreover, the ombudsman acknowledges that the death toll affected news coverage as well, despite his disclaimer that the Times shouldn't consider "morality" in its coverage! [Is not the choice to focus on acontextual civilian suffering in Lebanon as the essence, or at least, an extremely important aspect, of the war itself an implicit moral choice, a choice that implicitly favors a pacifistic response to terrorism when the terrorists hide among civilians?]
UPDATE: I notice many commentors are focusing on tangential quibbles, and missing three basic points:
(1) The ombudsman's explanation of the coverage, if accepted, would mean that the Times is "unfair" in virtually ever other conflict it has covered, a rather startling admission.
(2) The ombudsman chose to focus on the photographs covered by the Times as an indication of objectivity, but if you follow the ombudsman's own "count", readers who relied solely on the visual saw no pictures of Hizbollah gunmen, lots of pictures of Israeli soldiers, few pictures of Israelis suffering, and many pictures of Lebanese suffering. That's only "balanced" in some sort of alternate universe.
(3) The idea that the "balance" of war coverage should be determined by how well a paper covers "suffering" on each side suggests that the suffering is the most important aspect of the war. This is hardly a neutral perspective, and the Times should not pretend it is.
SCT Today:
With the new Supreme Court Term set to start next week, I thought I should mention BakerBotts' excellent "SCt Today" e-mail newsletter. The newsletter is a funny and entertaining e-mail written by a Supreme Court litigator summarizing recent developments at the Supreme Court. The one and only John Elwood started the tradition a few years ago, and Mark Stancil picked it up next; the torch has now passed to my friend Aaron Streett, who clerked for Rehnquist when I clerked for Kennedy. You can read archives of the series going back to 2000 here, and the most recent e-mail, sent yesterday, here. Some of the newsletters are classic — my favorite is probably this one by John Elwood during the road to Bush v. Gore — and all of them offer an insightful take on Supreme Court developments. Most importantly, you can sign up for free by sending Aaron an e-mail at aaron.streett (at) bakerbotts.com.
Jonathan Rauch on "The Right Approach To Rough Treatment":
As always with Rauch's work, this item is much worth reading even if you disagree with it.
We Are All Danes Now, Latest Installment:
The International Herald Tribune reports:
A leading German opera house has canceled performances of a Mozart opera because of security fears stirred by a scene that depicts the severed head of the Prophet Muhammad, prompting a storm of protest here about the renunciation of artistic freedom.
The Deutsche Oper in Berlin said it had pulled "Idomeneo" from its fall schedule after the police warned that the staging of the opera could pose an "incalculable risk" to the performers and the audience.
The Deutsche Oper's director, Kirsten Harms, said she regretted the decision but felt she had no choice because she was "responsible for all the people on the stage, behind the stage and in front of the stage."
Political and cultural figures throughout Germany condemned the cancellation, which is without precedent here. Some said it recalled the decision of European newspapers not to print satirical cartoons about Muhammad, after their publication in Denmark generated a furor among Muslims.
The decision seemed likely to fan a debate in Germany, and perhaps elsewhere in Europe, about whether the West was compromising its values, including free expression, to avoid stoking anger in the Muslim world....
What debate? Isn't this exactly what's happening here?
I should note that the opera is not quite rejecting Mozart as such: "The disputed scene is not part of Mozart's 225-year-old opera, but was added as a sort of coda by the director, Hans Neuenfels. In it, the king of Crete, Idomeneo, carries the heads of Muhammad, Jesus, Buddha and Poseidon, god of the sea, onto the stage, placing each on a stool.... 'The severed heads of the religious figures ... was meant by Neuenfels to make a point that "all the founders of religions were figures that didn't bring peace to the world."'"
But what they're doing is plenty bad enough -- they're surrendering their own artistic freedom by caving in to the fear of violence, and thus encouraging more threats of violence and more suppression of artistic freedom in the future.
Yes, I sympathize with organizations that feel the obligation to protect themselves and their viewers. But on balance such surrender, especially highly anticipatory surrender ("[t]his past summer, the Berlin police said they received a call from an unidentified person, who warned that the opera was 'damaging to religious feelings'[; t]he caller did not make a specific threat against the opera"), is both a disaster for artistic and political freedom, and I suspect encourages more violence than it avoids. Institutions that rely on this freedom need to be willing to run some risks to preserve it.
Finally, I think it's important that the change seems to be overtly motivated by fear of violence, rather than by genuine desire to avoid offending prospective viewers, or to avoid associating with what the organization sees as reprehensible ideas. The latter two justifications are aspects of one's artistic freedom: Artistic freedom includes the freedom to choose the art that one considers most worthy, and (generally speaking) that will attract viewers rather than repelling them. But the fear-of-violence justification is a surrender of that freedom.
Voters Still Have a Right to Choose Officials for Whatever Reason They Want:
David Habecker, town trustee of Estes Park, Colorado, was recalled by the voters "in a recall election dominated by the issue of whether those voters wished to continue to be represented by a trustee who had refused to stand and recite the Pledge of Allegiance at trustee meetings." So, of course, he sued, claiming that his removal from office violated his rights under the First Amendment and the Religious Test Clause.
Last week, the federal district court rejected his claim (Habecker v. Town of Estes Park, 2006 WL 2709589 (D. Colo.)), concluding that the recall proponents and the voters were acting as private citizens rather than as state actors, and thus weren't bound by the Constitution: They were free to throw an official out of office for whatever reason they pleased. As importantly, the court implicitly concluded that judges were not empowered to keep in office someone whom the voters had thrown out. Good decision.
Detainee Bill Goes Forward, Surveillance Bill Stalls:
The New York Times has the scoop: Congress on Tuesday was headed toward a split decision on President Bush’s pre-election national security agenda, moving closer to passage of legislation on the handling of terrorism suspects while all but giving up hope of agreeing on a final bill to authorize the administration’s eavesdropping program.
Tuesday, September 26, 2006
"House Aide Resigns Over Fake Blog Posts":
The Washington Post reports:
A top aide to U.S. Rep. Charles Bass resigned Tuesday after disclosures that he posed as a supporter of the Republican's opponent in blog messages intended to convince people that the race was not competitive.
Operators of two liberal blogs traced the postings to the House of Representatives' computer server. Bass' office traced the messages to his policy director, Tad Furtado, and issued a statement announcing Furtado's resignation Tuesday....
Posting as IndyNH and IndieNH, Furtado professed support for Democrat Paul Hodes but scoffed at a poll showing him tied with Bass and suggested Democrats should invest their time and money elsewhere.
"I am going to look at the competitive race list to figure out where to send another mydd.com/netroots donation and maybe help out in other ways," IndieNH wrote. "Maybe CT or NY for me _ they are at least close by. Anyone interested in pooling NH efforts for some of those races?" ...
Thanks to Adam Bonin, who posted about this on a discussion list that I'm on.
Strange Fourth Amendment Decision:
The Fourth Circuit decided a Fourth Amendment case on Friday that strikes me as very weird. The case is Presley v. City of Chartlottesville. Facts, as alleged in the complaint: Charlottesville, Virginia published a map incorrectly showing a public trail through the plaintiff's property. Plaintiff complained, but the city didn't change the map. Random hikers ended up walking through plaintiff's property because they thought it was public, and they ended up leaving behind trash and making a mess. This caused plaintiff a lot of stress and annoyance. The city offered plaintiff some tax breaks in exchange for an easement that would allow people to come on the property, but the plaintiff refused. She ended up putting lots of "no trespassing" signs on her property, but they were torn down. When plaintiff put up razor wire to try to keep the hikers away, she was prosecuted for it by the city (the prosecution was dismissed). Plaintiff called the police a lot when trespassers would arrive, and the police often came, but that didn't stem the tide. Plaintiff eventually sued the city on the ground that the city violated her Fourth Amendment rights. Holding, in an opinion by Judge Motz joined by Judge Shedd: The random hikers who walked through plaintiff's property are state actors who "seized" the plaintiff's property under the Fourth Amendment. They are state actors because they were following the government's map. Further, they "seized" the property under the Fourth Amendment because they interfered with plaintiff's property and the plaintiff felt deprived of her property with so many people on it. My two cents: This seems strange to me. First, I don't think there was a seizure of property under the Fourth Amendment (even if there was a taking under the Fifth). A Fourth Amendment seizure occurs when a state actor keeps a private party out of his property, as in Illinois v. McArthur. But surely a trespass itself isn't a seizure: the Supreme Court has always treated trespasses as searches, not seizures, and has developed the open fields doctrine in cases like Oliver v. United States and United States v. Dunn to determine when a trespass triggers the Fourth Amendment. Under the open fields doctrine, trespasses aren't searches unless they extend to the curtilage of the home; it sounds like the trail was far from the home, and thus was no search. Given the open fields doctrine, it would be rather remarkable if the same trespasses were a seizure. I gather that the claim in the complaint was that there were so many trespassers that plaintiff didn't feel comfortable using her land, but that doesn't sound like a Fourth Amendment claim to me. [UPDATE: A reader points out that in footnote 3 the court says that the curtilage question is unresolved because it wasn't settled by the complaint. I gather this means that the court is collapsing the separate search and seizure inquiries into some sort of combined test, and thus will somehow incorporate the Fourth Amendment search rules into a seizure analysis. I've never seen this done before, but it will at least make this part of the opinion less strange.] Second, it seems jarring to me that the trespassers were state actors. Most circuits have looked to three factors to answer this question: whether the government knows of or acquiesces in the intrusive conduct; whether the party performing the search intends to assist law enforcement efforts at the time of the search; and whether the government affirmatively encourages, initiates or instigates the private action. And they have all held, as has the Fourth Circuit, that mere knowledge isn't enough. Here, it seems to me that this is case of mere knowledge: the city made a map and didn't correct it, causing people to go on to the land, and they knew that this was happening. (There's an interesting question as to whether knowledge means knowledge that this kind of thing was generally happening or knowledge that it was happening in a specific case with a specific hiker, but let's bracket that for now.) But as I read the facts, the city didn't actually want people to go on to the land: when the plaintiff would call the police, they would come and keep the hikers off. And the private parties out for a nice Sunday hike clearly didn't have intent to assist law enforcement. The opinion states in footnote 7 that this is not a mere knowledge case because the government was "more heavily involved" than in the typical case, but it's unclear to me what this means and the Fourth Circuit doesn't seem to provide any analysis of the question. To be clear, these facts may be actionable on another theory, such as the Fifth Amendment's takings clause. But they don't sound like a Fourth Amendment violation to me. Thanks to reader Johnny Utah for the link.
Gun Control: Does the UN Protect Women’s Rights?
In a new article on ChronWatch, Howard Nemerov recounts some of the atrocities of sexual abuse perpetrated by UN "peacekeepers" against women. He also reports how some women in Liberia have joined rebel groups in order to obtain firearms to protect themselves from sexaul assault.
Thoughts about "Pete's Couch":
This Slate article about the federal Office of National Drug Control Policy's new anti-marijuana ad, "Pete's Couch" prompts the following question: If one of the greatest harms of marijuana use is that it makes you lazy -- as one would expect it to be if the federal government is producing ads about it -- why is marijuana use a criminal offense?
Children's Hearsay Statements and Probable Cause:
Is the uncorroborated, hearsay statement of a three-year-old sufficient to establish probable cause that child abuse has occurred? Today a divided opinion from the U.S. Court of Appeals for the Sixth Circuit confronts this question. Senior District Judge Thomas Wiseman, sitting by designation, wrote for the majority that the three-year-old's statement was not enough. From the majority opinion:
An eye witness’s statement that he or she saw a crime committed or was the victim of a crime is generally sufficient to establish probable cause. . . . We are not aware, however, of any situation in which the uncorroborated hearsay statement of a child as young as three, standing alone, has been considered sufficient to establish probable cause. . . .
contrary to the position of the dissent, our determination that probable cause did not
exist in this case is not based upon an assumption that the police could not believe or rely on the statements of a three-year-old child. In fact,a large part of the problem here is that the police did not interview the child at all. Instead, they relied solely upon the mother’s allegation that the child had made a statement indicating possible abuse. . . .
our opinion should not be read as holding that an accusation of child molestation reported to authorities by a parent will never suffice to establish probable cause. Nor are we holding that a child victim of sexual abuse must in every case be interviewed by police in order to establish probable cause. Shaw has not advocated any such rule, and we need not adopt one to find that the detention at issue was not based on probable cause. We hold only that the mother’s bare-bones hearsay accusation in this case, with no corroborating
evidence, did not suffice to establish probable cause, and that the ensuing arrest was therefore unlawful.
Judge Jeffrey Sutton dissented:
If a three year old may tell his mother that he has been sexually molested, if the mother may tell the police about the allegation and if the police may rely on her statement to establish probable cause, . . . what is it about the circumstances of this case that show probable cause did not exist to arrest Shaw? Nothing, I respectfully submit. . . .
As I read the majority’s opinion, it rejects the district court’s finding of probable cause on one ground and one ground alone: that the police could not believe the statements of a three year old. I realize the majority disclaims announcing such a bright-line rule, but I cannot see any other reason for the decision. While I share the majority’s anxiety about premising an individual’s deprivation of liberty on the observations of a three year old, it is well to remember that that is not all that happened. The police interviewed the mother, who knew both the victim and the perpetrator; they interviewed the medical staff; they learned that Shaw had the opportunity and necessary access to the child to commit the crime; and they learned nothing inconsistent with the accusation. And of course we are not being asked to affirm a criminal conviction. We are being asked a question of probabilities—whether a trained law enforcement officer could reasonably believe that Shaw had committed a crime. If the majority is right, the officers not only lacked authority to take Shaw into custody to ask him about the accusations, they also lacked authority to obtain a search warrant (also based on probable cause) of the suspect’s room—which seems untenable if, say, the allegations had included sexual abuse involving a physical object or photographs.
Law enforcement, to be sure, may consider the age of the victim in considering other circumstances of the investigation, and particularly any indicia of untrustworthiness, but the status of being a three year old does not as a matter of law discredit the victim’s accusations. . . .
everyone understands that “a defendant’s Fourth Amendment rights are not suspended when he is suspected of committing murder, rape or . . . child sexual abuse.” . . . My point is not that we should lessen Fourth Amendment protections in child-sexual-abuse cases; it is that we should |
