Friday, May 21, 2010
Rand Paul and Civil Rights
Paul has lately said he would not leave abortion to the states, he doesn't believe in legalizing drugs like marijuana and cocaine, he'd support federal drug laws, he'd vote to support Kentucky's coal interests and he'd be tough on national security.
So, according to Paul, the federal government has authority to nationally ban abortion, ban drugs (and support invasive police actions to deter drug use), and support local business interests, but does not have the power to tell businesses engaging in interstate commerce that they can't discriminate by race. Interesting to see where he draws his lines...
Monday, May 17, 2010
More on Miranda rights and terrorism
As a preliminary matter, you vastly underestimate the degree to which injecting a lawyer into an interrogation changes its dynamics. First, a lawyer's first instruction to his or her client--even if the lawyer plans to advise the client to cooperate--is to stop talking. Generally, the lawyer will then sit down with the client, figure out how much information the client has, in order to then plan a negotiating/proffer session with prosecutors. This wastes valuable time, and it tends to make any proffered information less valuable. This is a critical point, and indeed there is already an exception to the Miranda rule for public safety.
Second, giving a lawyer to a suspect inherently changes the power dynamics of the situation. All of a sudden, the suspect feels less vulnerable, more powerful, and this perhaps makes him less likely to volunteer helpful information about other terrorists. This second point is part of what Miranda is supposed to prevent. But, in this type of situation, Miranda is over inclusive. Miranda's purpose, as you mention in your post, is to protect against coerced confessions. By completely changing the power dynamic of an interrogation, however, it not only tends to prevent inculpatory statements, it also prevents law enforcement from quickly obtaining information that might lead to the apprehension of other terrorists.
Unfortunately, over time Miranda has come to be perceived as a good in itself--a shibboleth of sorts. But remember that Miranda is only a prophylactic rule for judicial efficiency. Prior to Miranda, court's had too much difficultly determining whether a particular inculpatory statement was truly voluntary. So, for the sake of efficiency, the Supreme Court came up with Miranda: Unless a suspect is informed of his or her rights, courts will presume that the statement was coerced. Obviously, investigators can elicit information from suspects without the interrogation necessarily being coercive. Furthermore, even without the Miranda rule, courts would continue to engage in a case-by-case analysis of whether a particular inculpatory statement was truly voluntary or whether it was coerced.
Therefore, you can see this being a win-win. On the one hand, investigators would be freed from having to read terror suspects their Miranda rights (thus eliminating the risk that the suspect will clam up, wasting valuable time), but, on the other hand, courts would continue making case-by-case determinations about the admissibility of particular inculpatory statements, protecting the terror suspect from improper coercive measures.
Finally, and most important perhaps, there's the political point. Unless us liberals can show that the criminal justice system is flexible enough to handle terror suspects and successfully (but not coercively) elicit information from them about other terrorists, we will continue to be beaten by the radicals, like Giuliani and Cheney, who want terror suspects--including American citizens--declared enemy combatants and water-boarded. So, ultimately, if the public safety exception to the Miranda rule needs to expanded (with legislative approval) in order to save the public's perception that the judicial system can handle terror suspects, I think that's the proper course.
Saturday, May 15, 2010
Revising Miranda
“We’re now dealing with international terrorists,” he said, “and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.”
Police investigating regular crimes (drug gangs, the mafia, etc.) and federal agents investigating terrorism are looking for the same two things when they question a suspect 1.) a confession that the suspect did it, and 2.) information about other people involved or other ongoing plots.
These two pieces of information have very different effects for a suspect who is in fact guilty. Giving the confession is bad for the suspect, because it will land him in prison. However, giving information about other plotters is good, because it can perhaps lead to immunity or a reduced sentence for cooperation.
Miranda rights also effect these two types of information differently - the right to remain silent comes out of the 5th amendment right to not have to incriminate yourself. If you know something about other bad guys (so long as your knowledge doens't incriminate you) you don't have any right to be silent as to that knowledge. The right to an attorney during questioning really just heightens the right to be silent - your attorney will probably tell you not to incriminate yourself, but will probably tell you to rat out your co-conspirators so that you can save yourself.
One conception of terrorists is that they're totally irrational (or at least totally disinterested in their own survival or wellbeing compared to their mission to kill/terrify Americans). If that's the case, then no amount of wheedling, deal-cutting, etc. is going to get information out of them, with or without a lawyer and with or without a reminder that they should remain silent. If this conception of terrorists is right, then Miranda rights are at worst pointless for real terrorists, and are important for the cases where an innocent person is suspected.
However, to the extent that some terrorists are self-interested, rational actors who might be interested in saving their own skin, Miranda is still not a problem from a national security standpoint. When Miranda applies, the suspect is already arrested. This means that he's neutralized for the time being, and even if for some reason he's cut loose, it's highly unlikely that any terror cell will take him back for fear that he's become an informant. This means that, for national security purposes, it doesn't really matter if the interrogators get a confession out of him or not - merely arresting him eliminates him for the foreseeable future as a terror threat. Consequently, if, because of Miranda, he doesn't incriminate himself, it's not really a national security loss.
Moreover, for this type of self-interested terrorist, having a lawyer present is going to help national security goals because the lawyer will advise the suspect to rat out his comrades in hope of getting some kind of leniency. Unlike the "mob lawyers", for example, there aren't (as far as I know) "terrorist lawyers" who have some kind of economic integration with Al Qaeda such that they would advise their clients to clam up for the good of the conspiracy. Most terror suspects are represented by legal aid or public defenders who don't have any kind of loyalty to al Qaeda's goals, and will just try to represent their client zealously, which, in criminal law, typically means finding a way to cut the best plea bargain possible with the prosecutors.
Summing it up, this means that in reality, Miranda rights are at worst a non-issue with terror suspects, and in some situations could speed along cooperation with investigators. Miranda is also critical when the suspect is innocent. So I don't really see any reason why they need to be changed, unless the real reason is something more sinister - the government wants to keep lawyers out of the process so that they can continue unsavory interrogation practices like torture and rendition that lawyers would (justifiably) fight.
Flag Football and Gender Discrimination
Not so.
Various "experts" quoted in the Times article believe that flag football shouldn't count as a girl's sport under Title IX because there's no opportunity to play in college:
No one is saying flag football isn’t a great sport to play,” said Neena Chaudhry, the senior counsel at the National Women’s Law Center, which has brought several cases against high schools alleging violations of Title IX, the federal law mandating gender equity in education. “But I do think it’s relevant to ask questions about whether girls are getting the same kind of educational opportunities as boys.”
...
Ms. Hogshead-Makar, who also serves as the senior director for advocacy at the Women’s Sports Foundation, said girls missed the educational benefits if they did not take a sport seriously.
“That’s one of the things that makes sports such an important experience,” she said. “You’re always striving to get to that next rung.”
Ms. Hogshead-Makar said flag football’s time should be up. “We’ve had 10 years of girls who have not been given other sports opportunities,” she said.
This is ridiculous. High school sports aren't funded as part of some kind of NCAA farm league. An NCAA study found that only about 5-10% of high school athletes go on to play sports in college. The vast majority of high schoolers that play sports do it for the exercise, the cameraderie, and because they like the game - not because it's a path to a scholarship or because they're "striving to get to that next rung."
While it doesn't have a college level for elite athletes, there are tons of recreational flag and touch football leagues around the country. I play on one in New York, a co-ed league that has nearly 100 teams and sells out every season. That may not be of interest to sports experts, who are probably elite athletes (Hogshead-Makar is a 3 time Olympic medalist in swimming), but for the 90-95% of high school athletes who don't go on to play college sports, flag football is just as good as any other sport.
I understand the concern that schools might be trying to weasel out of the Title IX requirement that they spend money equally on boys and girls sports, but, judging by the article, Florida flag football seems to be a totally bona fide sport - they've got real teams, practices, coaches, statewide playoffs. The complaint here, that Florida doesn't have any varsity boys sports that don't have an NCAA equivalent, is pretty meaningless.
Trying to scuttle a popular program that has kids off the couch, exercising and learning skills that they can use in rec leagues and with their families for the rest of their lives in order to pick a fight about non-existent discrimination is worse than pointless because it undermines attempte to fight real discrimination.
Tuesday, May 11, 2010
An interesting idea
Monday, May 10, 2010
"Terrorist" vs. "Suspected Terrorist" continued
While complaining about Elena Kagan's decision to deny access to military JAG recruiters at Harvard Law School (because the military violates Harvard's anti-discrimination policy for employers), Ed Whelan of National Review Online says this:
At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.
No Ed, the lawyers donated their legal services to people suspected of being terrorists, not terrorists. That extra word "suspected" makes a big difference. The lawyers I know who have been involved with accused terrorists are doing it to make sure that the government proves that the suspects are in fact terrorists - and not people with the same name as a terrorist, or people who were picked up in a village in Afghanistan that a lot of other terrorists live in, or something like that.
It's easy to think that only actual terrorists get arrested, and that this problem only affects others, and they probably have it coming to them for being involved with terrorists... but that's often not the case.
When I was a senior in college, about 6 months after 9/11, I was coming back from a spring break trip to Italy. Going through passport control, the customs agent stopped me, and started asking a bunch of detailed questions. Apparently I passed, so he let me through. I asked him why I had gotten extra scrutiny, and he told me that apparently there was somebody with my name on a watch list. Now, I have a very anglo name, and I'm white, blonde and unsuspicious-looking enough that tourists regularly stop me for directions in NYC. I can't help thinking what my encounter would have been like at that time if I looked different, or had a different name, or didn't speak English, or was just flustered and couldn't explain myself well. That's why we need to give suspects rights, and lawyers to defend those rights.
Friday, May 07, 2010
"Terrorism Suspect" does not equal "Terrorist"
The Terrorist Expatriation Act, co-sponsored by Senators Joseph I. Lieberman, independent of Connecticut, and Scott Brown, Republican of Massachusetts, would allow the State Department to revoke the citizenship of people who provide support to terrorist groups like Al Qaeda or who attack the United States or its allies.
First thought - ok, this seems somewhat reasonable. You lose your citizenship if you join another country's army (except, oddly, the Israeli Defense Force) so it makes sense that you'd lose your citizenship if you've taken up arms against the US as part of a terrorist organization.
Then I read this part:
The lawmakers said at a news conference that revoking citizenship would block terrorism suspects from using American passports to re-enter the United States and make them eligible for prosecution before a military commission instead of a civilian court.
Whoah, big difference. Stripping citizenship from people who've been convicted in a court of law of aiding terrorists, ok, I can get behind that. But just suspects? Many many problems with that:
Who decides which suspects get their citizenship stripped? Is it anybody who's "suspected" of terrorism? What if Obama told the State Department that he suspected Scott Brown was a terrorist... is Brown's citizenship gone? This is ridiculously unconstitutional - people have due process rights precisely because we don't trust the executive branch (even if we like the guy currently occupying the office) to just be able to punish people on the basis of suspicion
We have repeatedly gotten the "wrong guys" in terrorism arrests. It's easy to get the right guy when you're arresting the underpants bomber on the plane, but it's a much different thing if you're going after supporters who weren't caught red-handed. For example, according to whitepages.com, there are 151 in New York City alone who share the name "Khalid Mohammed" with the 9/11 plotter. It would suck to be one of them and have gotten swept up by the police when intelligence chatter indicated that a Khalid Mohammed was involved... and then have your citizenship stripped because you're now a suspect.
Just this week, journalists mixed up the Facebook profiles of Times Square bomber Faisal Shahzad with another Faisal Shahzad, focusing national attention on the innocent Faisal. This is another reason that, before the government takes harsh actions like removing somebody's citizenship, you have the full protection and inquiry of a trial to make sure that the government proves, beyond reasonable doubt, that suspect is in fact guilty of the crime charged.
This wouldn't even help terrorism prosecutions or intelligence collecting. If we've caught a terrorism suspect, he's locked up - he's not using an American passport to go anywhere. Moreover, even if a suspect's citizenship was stripped, the bill of rights generally applies to anybody in the US - citizen or not (that's why, for instance, even undocumented immigrants get provided a lawyer at trial - because the Constitution still applies to them). It's not at all clear that stripping citizenship would be anything more than a punitive measure.
In this country, we have due process for people suspected of comitting crimes because, now and again, the suspect is not in fact the person who committed the crime. Lieberman and Brown, and many other folks, in fear of terrorist attacks, are forgetting this - terrorism suspects are not always terrorists. The reason we have trials and such is to separate out the innocent from the actual terrorists.
Wednesday, May 05, 2010
Miranda "rights" for terror suspects
As happened with the underpants bomber in December, the freakout has centered around what a terrible idea it was for the police to read the suspect a Miranda warning. John McCain said that "It would have been a serious mistake to have read the suspect in the attempted Times Square car bombing his Miranda rights" and Joe Lieberman is talking about getting around having to read the Miranda warning by stripping suspects of their citizenship and shipping them to Gitmo (which frankly is too insane for me to even discuss, but Matt Yglesias explains why it's ridiculous here).
Here's why this is unutterably stupid. When police read a suspect the Miranda warning, they are not conferring any rights on the suspect. All they are doing is advising the suspect that he has rights that are already conferred automatically by the constitution. The 5th amendment automatically provides a right to remain silent and not incriminate yourself. The 6th amendment automatically provides criminal suspects the right to have an attorney. It's not like a cop's statement that "you have the right to remain silent" magically creates that right, and that the right doesn't exist absent the statement.
Moreover, because anybody who's ever watched television has heard the Miranda warning, and knows about these rights, it's not like the police are going to somehow trick a terror suspect into giving up information if the suspect isn't told that he can remain silent. However, failing to give the Miranda warning before questioning a suspect does mean that information you get out of the suspect won't be admissable when prosecutors bring him to trial.
Really what this is about is not the Miranda warning at all, but a desire by certain folks to deny fundamental constitutional rights (like the right to counsel, or the right to remain silent, or the right to remain free of unreasonable searches and seizures) from anyone that gets labeled a "terrorist," even if that person hasn't been convicted yet, and even if the suspect is an American citizen.
This is why those same folks like to play games about who gets called a terrorist - underpants bomber and times square bomber are terrorists (because they're muslims) but the guy who flew his plane into the IRS building or the militia members who wanted to blow up cops with IEDs aren't terrorists - the label makes a difference if one group of attempted mass murderers get constitutional rights and the other doesn't.
Monday, May 03, 2010
The Tea Party's solution to gays in the military
Kirkland, a Vietnam veteran, said of his time in the military: “I can tell you if there were any homosexuals in that group, they were taken care of in ways I can’t describe to you.”
Smith, who served in the first Iraqi war, added: “I definitely wouldn’t want to share a shower with a homosexual. We took care of that kind of stuff, just like (Kirkland) said.”
Assuming that Kirkland and Smith are alluding to a "code red" kind of "taking care of them" (and not the way that a 15 year old would assume that they "took care of them," particularly after hearing Kirkland's follow-up comment - “Things don’t go well in military barracks when you have 50 guys sleeping on top of each other”), I think the voters in Tennessee should be directed to Article 93 of the Uniform Code of Military Justice which notes that "cruelty and maltreatment" is punishable by dishonorable discharge and a year at Ft. Leavenworth.
Wednesday, April 28, 2010
George Will thinks Hispanics are either illegals, dishwashers or gardeners
Non-Hispanic Arizonans of all sorts live congenially with all sorts of persons of Hispanic descent. These include some whose ancestors got to Arizona before statehood -- some even before it was a territory. They were in America before most Americans' ancestors arrived. Arizonans should not be judged disdainfully and from a distance by people whose closest contacts with Hispanics are with fine men and women who trim their lawns and put plates in front of them at restaurants, not with illegal immigrants passing through their back yards at 3 a.m.
Tuesday, April 27, 2010
Today's random foreign blogging
Greece's GDP in 2009 was $356 billion, so adjusting their military spending to be more in line with similarly situated European countries would save them about $11 billion a year - something that would probably make the bond markets (and the EU) pretty happy. The communists lost and Turkey is part of NATO, so there's not really any reason to bankrupt your country with military expenditures when you can just freeride off the US like everybody else in Europe.
Does "last hired first fired" really protect teachers?
For example, my mother-in-law was by all accounts a phenomenal elementary school teacher, who took over a decade off in the middle of her career to raise her kids. When she came back, despite having a ton of experience (and caring more about her students than anyone I've ever met), she was perenially on the chopping block at her school because she didn't have any seniority.
During my time teaching in LA, there were some great senior teachers, and there were some who were just phoning it in to collect a paycheck. There were some amazing junior teachers, and some who were in over their heads. Again, it doesn't make sense to me that, if layoffs have to happen, the lousy senior teachers should be protected and the great junior teachers should be dumped.
In defense of seniority, the article states that:
Unions argue that administrators want to do away with seniority protections so they can get rid of older teachers, who are more expensive. They say that without seniority safeguards, principals could act on personal grudges, and that while keeping the best teachers is a laudable goal, no one has figured out an accurate way to determine who those teachers are.
This doesn't make much sense to me. Administrators want to keep good teachers, but probably also want to maximize their budgets. If senior teachers are good, I can't imagine administrators wanting to get rid of them just because they're expensive. On the other hand, if you have two equally lousy teachers - a junior teacher making $40,000 and a senior teacher making $65,000 - it seems like pretty good policy to toss the pricier bad teacher.
I also don't understand the argument that seniority safeguards are necessary to prevent principals from acting on personal grudges. This argument gets made all the time with regard to tenure, and I don't think it's any more applicable there. Most people work in jobs where there's no seniority protection or tenure. I don't have any tenure or seniority protection as a lawyer, neither do cashiers at Wal Mart, bankers at Goldman, or most other non-government employees. However, most people I know don't spend a lot of time worrying that we'll get fired because of a boss's personal grudge. Moreover, I don't understand how seniority protection protects anyone (other than senior teachers) from grudges - does that mean that it's ok to fire junior teachers over a grudge?
I have the same problem with the "we don't know how to evaluate good teachers" argument. If you walk into any job or office in this country, I can guarantee that the boss will be able to give you a general idea of who her good employees are and who the not-so-good ones are, and could tell you who the company should keep and who they should let go if there were layoffs. Heck, when I was a teacher I could have told you who the good teachers and bad teachers were at my school.
As a caveat, I'll note that the Times puts these arguments into the mouth of generic "unions," without quoting a person or even a specific union, so I'm a little skeptical. Readers who are currently teaching - do you think that these are legitimate reasons to keep seniority - or are they just more ways that the senior teachers (who run the unions) keep their jobs and perks at the expense of the new guys?
Thursday, April 22, 2010
Department of terrible policy
Mostly, though, Wall Street is making money by taking advantage of its rock-bottom cost of capital, provided courtesy of the Federal Reserve — now that the big Wall Street firms are all bank holding companies — and then turning around and lending it at much higher rates.
The easiest and most profitable risk-adjusted trade available for the banks is to borrow billions from the Fed — at a cost of around half a percentage point — and then to lend the money back to the U.S. Treasury at yields of around 3 percent, or higher, a moment later. The imbedded profit — of some 2.5 percentage points — is an outright and ongoing gift from American taxpayers to Wall Street.
Stop poxing both houses
Independents and Democrats at the Cocoa Beach Pier on Wednesday were more welcoming. They said an outsider candidacy by Mr. Crist might give Floridians a way to protest partisan politics. “People are upset with the whole system, and we need more than two parties,” said David Steranko, 39, a registered independent and Internet marketer of vacation packages. “I would really like to see our government stop bickering so much and work on our problems more.”
Look, what people are arguing about within the government is how to go about solving our problems. The endless debate on healthcare reform? That was because Democrats had a proposal to solve the problem of lots of Americans being uninsured, and Republicans thought that the Democrats' plan either wouldn't solve that problem, or would make other problems, like the deficit worse, or were playing for partisan advantage. With financial reform, Democrats perceive a problem (periodic crashes of the economy brought on by Wall Street shenanigans), and are trying to correct it with a financial reform bill. Republicans are fighting the bill, because they either think that it won't solve the problem, or because they'd like to hand Dems a loss. With both of these situations, Democrats (and some Republicans) are actively trying to solve problems - but lots of Republicans are gumming up the works to score political points.
Imagine that, at Mr. Steranko's internet vacation marketing company, he saw that there was a problem (too few people buying vacations), and he had a solution to it, but somebody else at the company spent months blocking his solution because they want Steranko to fail so they could have his job. I don't think that he would say that the right thing to do would be to fire Steranko and his antagonist, and bring in somebody else, because "there was too much bickering, and a third party should just solve the problem."
Wednesday, April 21, 2010
Question time
A lot of what passes for news about politics really lacks any explanation of the issues - the writers are more interested in talking about the controversy than explaining what the healthcare reform law, or the financial regulation bill, would actually do.
To that end, I want to encourage you to send me questions - you can email me at cnyexpat@gmail.com, post as comments to the blog, or leave them as wall posts on the cnyexpat facebook fan page. I'll do my best to answer anything you send, or at least find a writer out there who's got a good answer. I won't promise to be non-partisan, but I will try my best to be fair and intellectually honest.
If you send in a question, I won't use your name, but I may post all or part of your question to give context to the answer. Please let me know if you'd rather I not do that.