Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

02/27/2010 (11:22 am)

Patriot Act Renewal Highlights Dem Duplicity

Both the Senate and the House covertly passed legislation this week extending the Patriot Act for a full year, Politico reported Thursday. Already withering before the wrath of an endangered public over the Ft. Hood massacre, the KnickerBomber, and the attempt to try Khalid Sheik Mohammad in New York City, Congressional Democrats lacked the cojones to publicly dismantle yet another mechanism that protects the American public from violence. The quiet capitulation signals a disconnect between Congressional Democrats and their base, which consistently regards the Patriot act as an assault on their liberty.

The Senate passed the extension bill in a late-night session by unanimous voice vote, which allows Senators to obscure from their constituents the fact that they voted for the bill. The House passed their version as part of a bundle of extensions grouped under a Medicare reform act. The press release by Congressional Democrats mentioned only the failure of the Congress to adopt some additional privacy protections proposed by the Senate Judiciary Committee.

Meanwhile, comments around the Internet from Democrats continue to demonstrate how well the DNC sold its opposition to the Patriot Act — after voting for it almost unanimously in the wake of the 9/11 attack. The base hates the Patriot Act, mostly for invalid reasons. Here are a few comments from yesterday’s discussions at CNN and Democratic Underground (R-rated for language and for incomprehensibly odd thinking):

Pedro: Funny that so many GOP respondents think the government is a threat given that it was the Bush administration that tried to do away with Habeas Corpus and had the military and NSA listening in on the phone conversations of American citizens without having to secure a warrant.

Yeah, I for one feel much safer with the government now.

Why now? Why didn’t all these whiners take to the streets when George WWWWW Bush was in the process of eroding our civil rights, having telecom companies spying on us, capturing our data, and tightening our ability to move freely in the country and to Canada?

Why now? WHAT? What are these people talking about? Whine to the Republicans who TOOK YOUR FREEDOMS AWAY!

You’re all a bunch of looney-tune wackos!

I swear, they have mountains of evidence that it really isn’t effective and that in actuality, it’s illegal .. you have to wonder, who makes the big bucks by continuing this? Greed again rears its ugly head.

Yes, yes, but its DEMOCRATS taking away your rights. They only uphold the Republican status quo.

They don’t invent devious new shit. If you don’t vote for Democrats then Republicans will come in and invent more devious shit that Democrats will have to uphold. Of course, sometimes Democrats also have to invent devious new shit–like destroying public education and forcing Americans to buy shitty, overpriced insurance policies. But those are devious shits that Republicans could never get away with, so the Democrats must take on those issues.

Bipartisanship: Now Everyone’s Fucking You Over.

I discussed at length the legality of the wiretapping authorized under the Patriot Act back when it was a relevant topic. You can review that discussion here, if you like. However, it may not be necessary to do that, as it appears that leaders of the Democratic party agree that the Patriot Act is essential. In discussing this week’s action with Politico, Sen. Joe Lieberman (I, CT), who chairs the Homeland Security Committee in the Senate, very quietly observed that the Patriot Act does not deserve its bad reputation:

“In the end, it became non-controversial,” Senate Committee on Homeland Security Chairman Joe Lieberman (I-Conn.) told POLITICO. “[There was] the growing concern about increase on the pace of attacks on the homeland… and frankly, I think the Patriot [Act] got a bad name under the Bush Administration.”

Lieberman said FBI Director Robert Mueller and Secretary of Homeland Security Janet Napolitano emphasized to his committee the importance of extending the three renewed provisions: authorizing court-approved roving wiretaps that cover multiple phones or computers a suspect may use, court-approved search and seizures, and allowing surveillance of “lone wolf” non-U.S. citizens not affiliated with organized terrorist groups.

What comes through loud and clear is that many, responsible Democrats consider the Patriot Act both necessary and legal. They obviously do not want to try to make that case to their base, however. That makes their continued support of the Patriot Act worse than merely cowardly; it makes it duplicitous. They love the agitation of the base, but they also need the utility of the bill if they’re going to prevent an attack on their watch.

Of course, part of the reason they prefer to keep the Patriot Act in place could be because they intend to use it on American citizens. The Obama administration has not said as much, but some of the comments from the base suggest that the thought may have occurred to them:

Absolutely necessary to keep an eye on the Teabaggers

Now Obama, not Bush, can get you! Be very afraid racists!

They’re against (imagined) violations of liberty, except when it’s the liberty of their opponents. How noble.

If you’re curious, here’s a reasonably thorough (if somewhat negatively biased) discussion of which provisions of the Patriot Act need periodic renewal. In general, the portions of the Act that require periodic renewal extend the ability of the FBI to surveil agents of foreign governments without probable cause of a crime, allow the FBI to obtain and view the sort of information contained in email headers and caller ID, grant the FBI leave to obtain warrants in cases possibly involving chemical, biological, and nuclear weapons and in cases involving computer fraud, allow the FBI to share grand jury and surveillance information with national security operatives when necessary (breaching the famous “wall” between foreign and domestic surveillance,) allow for surveillance of all communications of a suspect without requiring a warrant for each specific phone number (called “roving wiretaps”,) give the FBI power to obtain a warrant to examine business and library records, allow the FBI to track the communications of “computer trespassers” without alerting the trespasser, and a few other details.

This is not the first time the Democrats have signaled the inconsistency between their vocal, public advocacy and their actual recognition of the need for sound protective measures. I wrote about the same disconnect when the Democrats renewed the FISA law two years ago. This sort of duplicity is not an occasional thing for Democrats, it’s the normal pattern.

12/29/2009 (8:40 pm)

Interpol Gets Full Diplomatic Immunity. Beware.

BlackHoleTextBoxTonight’s story begins in 1983, with Ronald Reagan signing Executive Order 12425, making Interpol, the international cooperative between national police forces, a recognized international organization under the International Organization Immunities Act, with a couple of limitations: representatives of Interpol were to be treated as foreign diplomats, but were subject to taxes, import duties, and customs duties, and were refused diplomatic privacy — the files and papers of Interpol here in the US were subject to FBI inspection, inspection by other law enforcement agencies, and Freedom of Information requests.

Here is the original Executive Order, signed by Ronald Reagan in 1983:

By virtue of the authority vested in me as President by the Constitution and statutes of the United States, including Section 1 of the International Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288), it is hereby ordered that the International Criminal Police Organization (INTERPOL), in which the United States participates pursuant to 22 U.S.C. 263a, is hereby designated as a public international organization entitled to enjoy the privileges, exemptions and immunities conferred by the International Organizations Immunities Act; except those provided by Section 2(c), the portions of Section 2(d) and Section 3 relating to customs duties and federal internal-revenue importation taxes, Section 4, Section 5, and Section 6 of that Act. This designation is not intended to abridge in any respect the privileges, exemptions or immunities which such organization may have acquired or may acquire by international agreement or by Congressional action.

The limits were in Sections 2(c), 3, 4, and 5 of the International Organizations Immunties Act (IOIA). You can read the text of the act here.

On December 17, 2009, President Barack Obama modified Executive Order 12425 to remove those limits. Here is the new Executive Order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1 of the International Organizations Immunities Act (22 U.S.C. 288), and in order to extend the appropriate privileges, exemptions, and immunities to the International Criminal Police Organization (INTERPOL), it is hereby ordered that Executive Order 12425 of June 16, 1983, as amended, is further amended by deleting from the first sentence the words “except those provided by Section 2(c), Section 3, Section 4, Section 5, and Section 6 of that Act” and the semicolon that immediately precedes them.

I have been warning since the 90s, after watching President Clinton’s moves at Kyoto and his testing of the waters using NATO to interfere in Yugoslavia’s internal affairs, that the next Democrat to be elected President would cede US sovereignty on several fronts, including environmental oversight, elections, and world courts. We’ve already seen President Obama’s aims regarding internationalizing carbon taxes. Now we’re seeing a genuine incursion into US sovereignty regarding law enforcement and international law.

In a word, this action gives Interpol authority over the US Constitution. They are already free, via diplomatic status, to conduct investigations here in the US. Now their activities can be carried out behind an impenetrable veil of secrecy. Neither the courts, nor the FBI, nor the military, nor private citizens can force access to their work. Section 2(c) of the IOIA reads as follows:

Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.

This actually does more than give Inspector Clouseau the right to keep his papers secret while flatfooting around the United States. There is no uniformed police force called “Interpol.” It’s actually a cooperative venture of law enforcement officials of each of the signatory nations, of which we are one. The US connection to Interpol exists within the Justice Department. As of December 17, the President has created a Black Hole in the middle of the Justice Department. Any activity carried out under auspices of Interpol by Justice Department personnel can be hidden behind that same, impenetrable wall of secrecy. By calling any action of theirs “international,” they create a wall of secrecy that no citizen, no law enforcement agency, no court can penetrate.

InternationalTextBoxIf you think they won’t finagle things to make them “international,” just recall what’s been done to make any commerce “interstate,” so it can be regulated by the federal government under the auspices of the Commerce clause.

Diplomatic immunity makes sense for diplomats. If diplomats were subject to the laws of the nations to which they were sent, they would be at risk from any hostile government that wanted to pass a law targeting them. Diplomats are not in the countries where they’re stationed because they want to be citizens; they’re there representing their own nations. Therefore, nations have agreed to treat diplomatic missions as though they were the territory of the nation being represented, and granted the representatives immunity from their laws.

Interpol is a different story. It’s an investigative body, investigating international crimes. It needs cooperation from member nations, and it needs access, but it does not need immunity. Quite the contrary; it is the limits on police powers that protect US citizens from tyranny. Police within the US have unusual access, but are not immune from laws, and are properly subject to scrutiny. International investigators should be treated the same. With full diplomatic immunity, US investigators operating under the auspices of Interpol can do whatever they like, and nobody has any recourse.

I’ll state this as plainly as I can: what consent I have granted to the United States government to operate in my behalf, as a citizen of the United States, I remove in its entirety as soon as the United States government cedes sovereignty in any manner to any international organization, agency, board, or group. I am not a citizen of the world; I am a citizen of the United States. No international organization has any right to threaten my life, liberty, or property, and any actions I take against individuals representing international organizations are to be considered acts of self-defense, not lawless acts against a properly constituted government. I grant not the slightest authority to any international organization over my liberties.

Andy McCarthy, the former US Attorney who prosecuted the Blind Sheik, explains the act clearly on NRO, and asks the appropriate question: why does Interpol need immunity from American law? Steve Schippert and Clyde Middleton examine the action very throughly at ThreatsWatch; read it all. Schippert also discusses the matter at some length on his radio program, which is available as streaming audio, in which attorney Melissa Clothier asks another question that badly needs an answer: What, exactly, did President Obama need that prompted this unacceptable action? Teresa Monroe-Hamilton adds some ugly facts about the history of Interpol at NoisyRoom.net.

Read all of it, then start the email circuit and get this out to your friends. This needs a very bright searchlight trained on it, and a very loud loudspeaker shouting the question “With what authority do you give away our sovereignty?” This is too far, and we must not permit it to stand.

Toldja. We are so screwed…

10/05/2009 (2:20 am)

Another Liberal Policy Goes Bankrupt

The “Broken Windows” theory that brought New York City back from the dead in the 1990s has recently been proved again in Los Angeles, as the LAPD instituted a similar policy to bring Skid Row back from anarchy. Heather MacDonald provided a useful case study in the failure of homeless-advocate ideology in the most recent City Journal, explaining at length how the homeless themselves were victimized by criminals empowered by stock liberal policies regarding the poor, and how they have benefited from simple law enforcement as a curative to these policies.

For 25 years, Skid Row constituted a real-world experiment in the application of homeless-advocate ideology. The squalor that engulfed the 50-block district just east of downtown Los Angeles was the direct outgrowth of advocates’ claims that the homeless should be exempt from the rules of ordinary society. The result was not a reign of peace and love among society’s underdogs, but rather brutal predation and depravity. Occupants of the filthy tents and lean-tos that covered every inch of sidewalk in the area pimped each other out and stole from, stabbed, and occasionally killed one another. Gangs and pushers from South Central and East Los Angeles operated with impunity under cover of the chaos that reigned on the streets.

The intrepid small wholesalers and warehouse owners who tried to keep the area’s once vigorous commercial trade alive removed feces, condoms, and hypodermic needles from the entrance to their properties every morning. Elderly residents of the local Single Room Occupancy hotels were imprisoned in their tiny apartments, terrified to go outside.

In 2006, Los Angeles Police Chief William Bratton announced a full-scale attack on Skid Row anarchy. His Safer City Initiative (SCI) would be a demonstration project, he said, for Broken Windows theory, which holds that tolerance for low-level forms of crime and disorder allows more serious crime to fester. When the police started enforcing jaywalking, public urination, and public camping laws, thousands of warrant absconders and violent parolees on the lam lost their refuge. Order gradually returned to the streets.

The homeless themselves were the Safer City Initiative’s most immediate beneficiaries. As the lawlessness in the encampments was pushed back, deaths from drug overdoses, untreated disease, and other non-homicidal causes of mortality diminished as well, falling 36 percent in just three years. Skid Row’s violent crime—the victims of which were almost always other vagrants—decreased 45 percent from the first nine months of 2006, before SCI began, to the first nine months of 2009. The lean-tos faded away as their inhabitants discovered that they could no longer smoke weed and crack in them all day without disturbance.

The LAPD program was vigorously resisted by homeless advocates in LA in conjunction with the ACLU, accompanied by obligatory accusations of racism and lack of concern for the poor. MacDonald goes into great detail about a double homicide that occurred this summer at a shelter run and defended by one of these advocates, citing the instance as proof that homeless advocacy has gone bankrupt as a means of helping the poor.

Almost invariably, liberal policies harm those most that they aim to help. Instances of this include welfare, which robbed several generations of poor people of dignity and enslaved them to the government dole; legal abortion, into which the majority of women who receive them feel they have been pressured or coerced by self-interested family; and radical environmentalism, which routinely prevents the poorest from improving their lot through the sort of industry that becomes the basis for environmental awareness and improvement. This effect occurs so regularly that I’m forced to imagine that most liberals are more interested in appearing compassionate than they are in actually helping the poor; a lot more leftist voting is caused by a desire among the morally weak to lord their superiority over others, than is caused by real concern.

09/29/2009 (4:56 pm)

A Little Opportunistic Admonition on the Occasion of the Defense of Roman Polanski

On the whole, I really don’t give a damn what famous people do, except as it affects the central affairs of the culture. I enjoy movies as literature or escape, but I do know the difference between the character in the plot and the actor in front of the camera (not to mention the director behind the camera and the producer behind the project,) and I try not to let my opinion of their loud but usually inconsequential off-screen idiocy affect what I think of the art in front of my face.

That said, the recent arrest of famous movie director Roman Polanski (Rosemary’s Baby, Chinatown) after his having fled sentencing for a statutory rape conviction 30 years ago, followed by the mindless and unfortunate defense of said scumbag by certain media liberals, gives me an excuse to rehearse some of the fundamentals of American legal philosophy, fundamentals about which a truly astonishing number of people are completely clueless. When a case like this hits the public, we hear all sorts of blather from people whose sense of justice has been contorted by noble-sounding phrases they don’t understand any better than a cat understands cosmology. So, here we go, sensible answers to contorted blather:

Blather: The victim has forgiven him, so he should go free.

Nothing could be less relevant. American criminal law is not about obtaining retribution for the victim, nor about protecting the victim, nor anything about the victim. The branch of American law concerning victims obtaining compensation for losses sustained by the acts of others is called “tort law,” and is pursued in civil courts, not criminal courts. In American criminal law, the injured party is society. That’s why criminal trials are always called “the state versus [criminal's name],” or “the county versus [criminal's name],” not “[victim's name] versus [criminal's name].” The criminal is, by virtue of his or her acts, considered to have damaged society by committing acts designated by the legislature as criminal acts, and stands to be punished by society. The victim is important primarily for establishing the fact that a crime has been committed and for furnishing the details of that crime. Consequently, the victim has neither power nor right to stop the state from executing sentence on the criminal who injured him or her — particularly not, as in this case, after the criminal has been found guilty in court.

Blather: we should have compassion, because Polanski has been through so much.

Perhaps. Penalties for criminal acts are established by acts of the legislature, and they are usually established as a range of penalties rather than a specific penalty. For example, the penalty for armed robbery might be imprisonment in a maximum security facility for from 5 to 25 years, and a fine ranging from $1,000 to $50,000. The reason for the large range of possible penalties is so the judge, upon hearing the circumstances of the case, the defendant’s value to society, the unfortunate circumstances leading to the crime, or any other mitigating fact, can adjust the penalty to suit the need. In other words, the judge does have the power to change the outcome in response to things like how hard Polanski’s life has been, if he thinks that is relevant.

However, the judge does not have the power to punish the criminal less than the lowest penalty established by the legislature. Why? Because the legislature has not given him that choice, and it’s the legislature that establishes the law. If we really think the law should allow a person committing a particular act to go free if the circumstances are sufficiently heart-breaking, it is up to the legislature to specify that in the formation of the law. Once the law is established, if you really think the penalty is too harsh and should be less, the correct move is to write to your state representative and lobby for a change in the law. (You also have extraordinary recourse, like petitioning the governor for a pardon.)

Blather: We should forgive Mr. Polanski. This is the Christian thing to do. So, he should not be arrested.

Yes, we should forgive Mr. Polanski, inasmuch as he has sinned against us. Forgiveness is for the offended, and it’s necessary for their mental health (on the other hand, if he did not sin against me, I have neither need nor power to forgive.) We should also have a great deal of compassion for both the criminal, whose life has probably been ruined by the arrest, and the victim, whose life has usually been damaged by the crime, and also for the families of both. And we should continue to express that compassion as the criminal goes through the legal process of having the particulars of his crime established in court, and later through the process of paying the penalty for the crime.

Forgiveness and compassion are personal responses. Exacting a penalty for a crime is a social response. There is no conflict between them. One can forgive the criminal and still cooperate with the process of exacting the penalty for the crime. Cooperating with the state as it prosecutes the criminal does not constitute unforgiveness. Recall the philosophical position discussed in the first Blather/Response, above — the crime is committed against society, not against the victim. Recall the limits of the court system discussed in the second Blather/Response, above — the penalty is set by the legislature, not by the court, nor by the victim. If “we” are going to forgive the criminal, that option must be established by the legislature, or it will not be possible after the fact.

Blather: he didn’t really rape her, it was just statutory rape.

Don’t say this to my face, you’re likely to get something thrown at you. Like a fist.

First of all, the facts of this case, which are not in dispute, establish that despite all the alcohol and drugs there was no consent, so it really was rape. But beyond that, the theory of the law — with which I agree completely — is that children below a certain age are not capable of making sensible choices about sex. Their curiosity, their inexperience, their raging hormones, their unrealistic expectations, their delusions of immortality, their lack of moral maturity, all make them more easily susceptible to agreeing to things that more mature minds would recognize as dangerous and ill-advised. It is always the adult’s responsibility to steer the child (teenager) away from the danger. The adult failing in that responsibility is taking advantage of the teenager’s natural curiosity; that is the crime. The adult is the one who is supposed to know better.

Yes, I know that every teenager in existence insists that they’re fully capable of making sensible decisions about sex. They all also say they’re ready to drive a car; we all know what the safety stats say about that. The sheer inability to comprehend the dangers is part of the immaturity that the law recognizes.

Blather: It was 30 years ago. Isn’t there a statute of limitations or something?

There’s an excellent reason for statutes of limitations; peoples’ memories fade, and it becomes impossible to establish the facts of a case after several years have passed. However, those don’t apply here. The arrest was made, the prosecution took place, Polanski’s guilt was established in a court of law well within the limits of the statute. He just ran away before the court had a chance to pass sentence. So, no, there’s no statute of limitations. And it makes no sense to just let the guy go because he got away with not paying for his crimes for 30 years. That’s 30 years of pretending that the law didn’t apply to him; it’s high time that he was dispossessed of that illusion.

Blather: Polanski is a great artist, and has produced truly amazing art. He should not be arrested.

He also is a rapist, and contributed powerfully to producing an insecure society in which young women are not safe from predators. Polanski has been recognized for his art, and has grown wealthy from it. He should also eat the fruit of the other production I mentioned.

Insofar as you disagree, please reread Blather/Response item #2: the judge already has the power, granted by the legislature, to take the excellence of the man’s art into account when passing sentence. But he does not have the power to ignore the law.

Besides, do we really want to uphold the precedent that says that the laws that apply to the rest of us, do not apply to those who are rich, famous, or particularly good at what they do? Is it not the very essence of justice in a free society that everybody is equal before the law, regardless of their station?

Blather: everybody knows that child predators cannot be cured. We should lock him up and throw away the key.

There are a lot of different types of child predators. Some are very difficult to cure. None are impossible. The recovery rate from pedophilia is roughly the same as the recovery rate from drug addiction; a lot of the issues are the same. The law needs to be able to distinguish intelligently between different circumstances. The issues involving a 40-year-old man who routinely entices small children away from their mothers and keeps a houseful of snuff porn are different from the issues involving a 23-year-old who dates a 17-year-old, though both may be prosecuted under the same law. The law needs to be written to distinguish between them.

If there are particular pedophiles who are judged to be an ongoing danger to the community, that fact needs to be recognized by the legislature and incorporated into the law punishing those particular crimes. The current state of “Megan’s Law” enforcement and state sexual predator registration is abysmal, and ignores vital principles of liberty. Whatever laws we do make concerning child molestation, must conform to the boundaries of the Constitution.

Please feel free to add additional blather points in the comments, below, and I’ll be glad to give my opinion, or to listen to yours. I don’t care all that much about Mr. Polanski. I do care about the law.

09/22/2009 (11:12 am)

Kids, Don't Try This At Home

A senior citizen in Milwaukee decided this bank robber was endangering his wife, so he took him down single-handed. This is just hilarious, actually, and I say “Bravo!” to the elderly gentleman who had the cojones to tackle a 23-year-old kid. Watch:

Notice the bank customer who decides to help out by kicking Mr. Bank Robber while he’s down, at about the 47 second mark. Can’t say I blame her, though I’m sure it didn’t help much. Incredibly, some imbec… er, commenter at YouTube thought she should be arrested for assault for doing that. I can see that; I sure wouldn’t want anybody kicking me if I were robbing a bank…

Hat tip to This Ain’t Hell (but you can see it from here).

02/08/2009 (5:51 pm)

The De-politicized Justice Department (Updated)

Leftists have been raging for the past two years over the alleged politicizing of the Justice Department by the Bush administration. Their evidence consists of the perfectly legal firings of several Justice Department attorneys for various reasons, a few of which include failure to carry out Justice Department policy in investigating and prosecuting voter fraud by Democrats. Also included in the case file is an admission by mid-level attorneys that they would not hire Democrats, a move unfortunately motivated by the desire to change the mix of the Department after the Clinton administration refused to hire Republicans for 8 years. And finally, a couple of conspiracy theorists insist that Karl Rove fomented a plot to falsely indict Don Siegelman, Democratic Governor of Alabama, in a pay-for-play scheme in which three other men plead guilty. For these offenses against justice, Democrats seethe with rage against those crooked, unscrupulous Republicans.

Today, within the first week after Michael Steele was elected chairman of the Republican National Committee, a “mistake” by a US Attorney sent a sealed sentencing memo “inadvertently” to the Washington Post, containing unsubstantiated allegations against Steele by a felon seeking a reduced sentence. The Post ran the story on the front page above the fold, as would be expected. Now the RNC chairman, instead of being properly investigated out of the public eye as demanded by the court (with no need for exoneration if the accusations don’t check out,) gets to have his case judged by the entire American public without proper investigation. Obama’s justice: change we can believe in.

From the Washington Post story:

The U.S. attorney’s office inadvertently sent the confidential document, a defense sentencing memorandum filed under seal, to The Washington Post after the newspaper requested the prosecution’s sentencing memorandum.

The charges in the memo have to do with improper handling of campaign funds. It’s hard to say whether the funds were handled improperly or not; all we have is an accusation. Steele will have to live with the allegations for the rest of his life.

Meanwhile, I wonder what the Justice Department is doing to investigate the tens of millions of dollars apparently raised illegally from foreign sources by the Obama campaign? How far along do you suppose that investigation has gone?

[sarcasm]I’m just so absolutely relieved that the Justice Department is now in the hands of those who will not politicize it.[/sarcasm]

[more sarcasm]I’ll be interested in reading the outrage that is certain to come from Scott Horton of Harper’s and Glenn Greenwald of Salon.com. After all, Messrs. Horton and Greenwald have been the champions of a Justice Department above partisan bias these last years; surely they will object to this barely veiled cheap shot.[/more sarcasm]

The US Attorney who committed this “error” must be fired immediately. This is an unconscionable act, and unlike the piddling nonsense touted by the hypocrites of the Democratic party, a genuine politicizing of justice.

Tips o’ the plumb bob to Steve Hayward of The Corner, whose attorney spouse observes that its entirely unclear that any law has been broken, and to Hot Air which reports more detail.


Scott Horton, who writes for Harper’s and is mentioned in this post, commented that the Obama administration’s appointments have not yet been seated, and that the US Attorney responsible for the case in which Steele peripherally is involved, was a Bush appointee and probably a conservative. If this is true, it changes the picture somewhat, and makes this a case of covert partisan opportunism rather than any overt malfeasance of the Obama administration. To wit: even if Horton’s claims are true, surely the timing of the leak is suspect. The question becomes “who leaked the sealed sentencing document?”

My call for the firing of the US Attorney is obviously premature, and I regret the error. However, I maintain that the leak is manifestly the result of partisan opportunism, and should be of concern to anyone who claims interest in keeping the Justice Dept. bias-free, Mr. Horton included. If the law ever becomes a weapon to be used by partisans against their opponents, then none of us will be safe, and the US political landscape will take on the worst characteristics of third-world politics. More to the point, breaking the law to achieve partisan advantage cannot be tolerated. Whoever leaked this document to the Post should be fired.

The law has clearly been the tool of Democratic partisans against Republicans, a development of the past few decades that must be reversed if the Republic is to be saved. The Clinton Justice Department was, by far, the most partisan in our history. Some of these partisans have been working overtime to create the appearance of comparable lawlessness by Republican partisans against Democrats, while ignoring or deliberately obscuring far worse Democratic malfeasance. These may be well-meaning dupes, which is forgivable, but on the whole they’re either too well educated to be considered dupes, or too partisan to be considered well-meaning.

01/19/2009 (1:21 pm)

Ramos and Compean Freed

I’m about four layers removed from the actual story: AP informs Breitbart informs Hot Air informs moi. Still, the base will love this one. Apparently they cannot be pardoned, but their sentences can be, and are being, commuted.

That’s a relief. Even if you think they mishandled the situation, 10+ years in solitary is a Kafkaesque penalty for shooting an habitual drug dealer in the ass.

01/17/2009 (4:39 am)

Exclusionary Rule Not Reversed

A few days ago, I wrote that the Exclusionary Rule had been reversed when the Supreme Court announced their decision in the case of Herring v US. After reading the decision, it’s apparent that the Exclusionary Rule has survived to ruin another day.

Herring v. US involves a defendant who was a known trouble-maker who came to the precinct to get something of his from a car that had been impounded. While he was there, police checked their own county records (Coffee County) to see if there were outstanding warrants for his arrest, and called the next county (Dale County) to see if they had any outstanding warrants on the guy. Dale County said there was, so the police detained him, searched him, and found drugs and an illegal firearm (Herring is a convicted felon who is not permitted to own a weapon). After they searched him, the clerk from Dale County called back and said, “Oops, the warrant was reversed five months ago, we forgot to update the computer.” Coffee County prosecuted Herring anyway for the drugs and the gun. He appealed his conviction, complaining that the search was in violation of his 4th Amendment rights (which prevent the government from performing unreasonable searches.) The 11th Circuit upheld the conviction, saying that the Exclusionary Rule — the one that says evidence gathered in violation of the 4th Amendment cannot be admitted in court — only applies when it’s deterring police misconduct, and there was no misconduct in this case. Dale County was negligent, said the 11th Circuit, but not reckless or deliberate in serving the improper warrant.

Justice Roberts wrote the decision upholding the decision of the 11th Circuit Court, saying that there exists in case law surrounding the Exclusionary Rule a “good faith” rule that basically says that if the police acted in good faith the evidence they gather need not be excluded. The basic idea is that the Exclusionary Rule exists to punish the police for violating peoples’ rights. When the cops break down your door with no reason, the courts want to make sure the police don’t benefit, so they exclude the evidence (I know, it makes no sense. They should prosecute the police and make them pay for your door.) If the police are not deliberately trying to violate your rights, but instead are acting as any reasonable officer would to adhere to the law, then there’s no reason to exclude evidence. Roberts made it clear that he’d consider it bad faith if Dale County consistently made errors in their warrants database, but that didn’t seem to be the case.

Justice Ginsberg wrote a dissent (joined by Souter, Breyer, and Stephens) basically saying “The Exclusionary Rule is the defendant’s only protection, and it’s important to punish Dale County’s clerical flub.” She wants the Exclusionary Rule to apply further than it historically has, and demands perfection. It strikes me that Justice Ginsberg forgets the purpose of the criminal justice system, namely to protect the people from criminals. Instead, she thinks the police are there to create a Constitutionally pristine system. They’re not; that’s her job, not theirs. Their job is to protect the people. Ginsberg wants to sacrifice the good of the people for the sanctity of the law. She reminds me of the librarian in the town library where I grew up, who wanted so badly to protect the books that she hated lending them out. Legalism always sacrifices the people for the sake of the law, forgetting that the law exists to serve the people.

Justices Breyer and Souter added in a separate dissent that previous cases distinguished between court clerical errors and police clerical errors, and that this case involved police clerical errors. They’re correct about the previous cases; Roberts agreed, but said there was no misconduct to deter, so the Exclusionary Rule need not apply. I agree with Roberts, but this dissenting opinion was more reasonable than Ginsberg’s.

It was a sensible decision, but not a major change in law. I’ve corrected my previous post on the subject to reflect this.

01/14/2009 (12:08 pm)

Exclusionary Rule Reversed (Updated: No, It Wasn't)

The US Supreme Court ruled this morning that evidence obtained improperly due to an error in police records may be used in the prosecution of a criminal suspect, and need not be excluded. This is great news.

I wrote back in July that the Supreme Court would be hearing a case in October, and that it looked as though the Exclusionary Rule would be reversed. The exclusionary rule is the one that says evidence obtained in violation of constitutional procedure must be excluded from trial, and any evidence obtained as a result of evidence obtained that way must also be excluded. The US is the only nation in the free world that uses the courts to enforce a rule like this; most other nations use laws that permit the court to evaluate the seriousness of the violation of rights, and balance that against the seriousness of the crime in question.

Without reading the decision, it’s hard to say exactly how drastically the rule has been changed. I’m sure the decision will be posted within the next 48 hours or so, and I’ll explain further then. In the meantime, the only clue I’ve seen is this brief comment from the New York Times:

… Chief Justice John Roberts, writing for the court, said the evidence may be used ”when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.”

The vote from the Court was along ideological lines. Roberts wrote the decision, supported by Alito, Scalia, Thomas, and Kennedy. Ginsberg wrote a dissent, joined by Breyer, Souter, and Stephens.

For the time being, the Court remains the only major organ of government from which we can expect even occasionally to hear good sense. Ginsberg and Stephens will most likely be resigning in the next year or two, undoubtedly to be replaced by hard liberals like themselves. The long-term mix of the Court will be determined by who’s President, and who’s in Congress, when the next conservative jurist resigns.


UPDATED 1/17/09: After reading the decision, it’s clear that the Court simply applied and extended an existing “good faith” rule. The “good faith” rule makes it unnecessary to exclude evidence when it’s clear that the police acted on “objectively reasonable reliance” that a warrant was sound, and the clerical error that rendered the warrant invalid was not part of a widespread pattern of negligence or recklessness. The Exclusionary Rule survives to ruin another day, but at least the Court ruled reasonably today.

07/23/2008 (10:40 am)

Countdown to Oct 7

On October 7 of this year, the US Supreme Court will hear the case of US v Herring and decide whether the police department’s accidental failure to purge an expired warrant from their records requires the exclusion of evidence gathered under that warrant. The case triggers the hope that finally, after almost 50 years of insanity, we can kiss the Exclusionary Rule goodbye.

The Exclusionary Rule is the one that says that evidence gathered improperly cannot be used at trial. According to standing Court precendent, the 4th Amendment protection against unreasonable searches and seizures and the 5th Amendment protection against self-incrimination are not safe unless evidence gathered in violation of the 4th Amendment gets excluded from trial; and not only the evidence gathered improperly, but evidence obtained as a result of other evidence that was gathered improperly, is “fruit of the poisoned tree” and must be excluded as well. The case of Weeks v US in 1914 created the Exclusionary Rule for federal cases (which became a major issue during Prohibition), and in 1961, Mapp v Ohio extended the rule to all the states by way of the 14th Amendment. Some recent cases, however, have suggested that the Court is ready to make changes in the Exclusionary Rule.

Adam Liptak of the New York Times observed over the weekend that the US is alone among nations of the world in enforcing an exclusionary rule.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence. (my emphasis)

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

Naturally, the fact that the US does something unusual does not constitute a reason, in and of itself, to change the rule. It does give us a reason to evaluate whether our distinction is a good one, though, and in this particular case, the foreign courts have a point. Some violations of 4th Amendment procedure are more blatant, and more damaging to the fabric of society, than others. Furthermore, the truth is the truth, and evidence gathered improperly is still evidence in an objective universe, regardless of whether it’s permissible in court or not. If we know a crime has been committed, and we know by whom, we should be able to prosecute it.

Law professor Eugene Volokh suggests that the reason for the US’ unique approach to excluding evidence is that it’s a judge-made rule in the US. In most other nations, the legislature made the rules about investigative procedure (and they should have the power to do so here as well). Since the rule was made by judges, they naturally chose to enforce the rule in a manner that remains entirely under the control of judges, avoiding the need for cooperation between branches of government.

This is insanity, and should be changed by the legislature. It makes no sense to allow known criminals to walk away unpunished because of procedural miscues, without at least allowing a court to weigh the miscue against the seriousness of the offense. Allowing the court to weigh the comparable offenses could permit the prosecution of criminals while protecting our liberty.

I actually prefer allowing all evidence gathered to be used in court, but punishing the investigating officers for violations of 4th Amendment protections, graded by the seriousness of the violation. This would deter unreasonable searches, but permit the system of justice to prosecute known criminals. The one exception should be for coerced evidence, which should never be admitted.

There’s no question that protections must remain in place to guard citizens against unreasonable police actions and self-incrimination. However, the Exclusionary Rule has outlived its usefulness as a means to achieve this. Let’s hope the Supreme Court restores the nation’s sanity, and gives us a way to prosecute known criminals without giving away our protections altogether.

Photos from IMDB.com. First photo is of Jack Webb and Harry Morgan as Sgt. Joe Friday and Officer Bill Gannon in Dragnet 1967. Second photo is of Joe Ross and Fred Gwynne as Officers Muldoon and Tootie in Car 54, Where Are You? circa 1961.

Older Posts »