No, no, no.

A quick hit on the case of Ahmed Ghailani, the accused terrorist who was tried in civilian court for the bombing of U.S. embassies in Tanzania and Kenya.  Charged with 281 counts of murder and conspiracy, Ghailani was convicted on only a single count of conspiracy, because the judge ruled that certain testimony was inadmissible on the grounds that it was obtained through the use of torture.

The conservatives are making hay of this. Ed Morrissey at HotAir:

The failure of Holder’s DoJ to win anything more than a single conspiracy count against Ghailani as a result of using a process designed for domestic criminals than wartime enemies shows that the critics had it right all along.  It also shows that both Obama and Holder have been proven spectacularly wrong, since a man who confessed to the murder of over two hundred people will now face as little as 20 years, with a big chunk of whatever sentence Foopie receives being reduced by time already served.

And on the Left, Glenn Greenwald at Salon:

But the most important point here is that one either believes in the American system of justice or one does not.  When a reviled defendant is acquitted in court, and torture-obtained evidence is excluded, that isn’t proof that the justice system is broken; it’s proof that it works.  A “justice system” which guarantees convictions — or which allows the Government to rely on evidence extracted from torture — isn’t a justice system at all, by definition.

They’re both right.

A justice system, if it makes any pretense at all at justice, is predicated on protecting individual rights–including the rights of the accused.  If the evidence was inadmissible (and it likely would have been inadmissible in a military tribunal as well), then it was inadmissible.

However…

Civil justice is simply not the right forum in which to deal with international terrorism. The administration has already admitted that regardless of the outcome of the trial it has the right and the will to hold Ghailani indefinitely anyway.

A justice system, if it makes any pretense at all at justice, is predicated on the idea that the results of trials matter.

The one point on which both Morrissey and Greenwald agree is that this whole exercise was nothing more than a show trial. It was a farce masquerading as principle. Money, time, energy wasted on a mock trial whose outcome simply doesn’t matter.

But we knew all this already. When the Obama administration announced that they would seek civilian trials for some of the Guantanamo detainees, but not all, it made the tacit admission that the trials were being conducted for political purposes only.  When it further announced that it would continue to hold the defendants, even if acquitted, as enemy-combatants, it ceded the entirety of the argument to the opposition.  The administration has admitted that these men are enemy combatants, but will, in an attempt to mollify a particularly vocal group of political partisans, hold show trials and make a pretense of justice.

The Awful French

From the NYT on Roman Polanski’s arrest.

Jack Lang, a former French culture minister, said that for Europeans the development showed that the American system of justice had run amok.

“Sometimes, the American justice system shows an excess of formalism,” Mr. Lang said, “like an infernal machine that advances inexorably and blindly.”

An infernal machine that advances inexorably and blindly.

Yes, that’s right. Pardon my… French… but that’s the whole fucking point.

What would be the alternative? A system of Justice that attunes itself to artistic merit and excuses the crimes of those who enjoy particular patronage? Should an Oscar amount to a Get out of Jail Free card?

Roman Polanski drugged, raped, and sodomized a 13 year old girl.

Arresting him for fleeing sentencing (he pled guilty) for that crime is justice “run amok?”

Update:

From John Farr’s execrable column, “Leniency for Polanski”:

This new arrest also smacks of a sneak attack on the now 76-year-old director, who’s been remarried to actress Emmanuelle Seigner for two decades. (He’s probably reformed by now , don’t you think?)

“Sneak attack?” executing a 3o-year old arrest warrant is a sneak attack? What about plying a child with alcohol and Quaaludes? Oh… and he’s married. Well then! Married and a famous movie director? He is surely beyond all law.

From Bernard Henri-Levy’s “Rally Behind Polanksi”,

He risks extradition to the United States for an episode that happened years ago and whose principal plaintiff repeatedly and emphatically declares she has put it behind her and abandoned any wish for legal proceedings.

“Episode?” How about “Rape?”

There is no “plaintiff” in this case. A plaintiff exists in a tort, this was a crime. The state prosecutes crimes, not the victim.

Update 2:

Yes, I know that a movie was made about the Polanski trial. Yes, I know that allegations were made that there may have been judicial misconduct leading up to the sentencing. But that’s a movie, those allegations have not been tried because Polanski fled the country and refuses to appear before a Los Angeles court. If the allegations in Wanted and Desired have not exculpated Polanski it is because Polanski remains a fugitive.

There are three legal issues invlved in the Polanski case:

1) He drugged, raped, and sodomized a 13 year old girl. He plea-bargained and pled guilty to a lesser offense.

2) He fled the country before sentencing for that crime.

3) Allegations have been made that the Judge in the trial (now deceased) had improper dealings with a prosecutor (not the one who tried the case) and may have intended to reneg on the plea-bargain and impose a harsher sentence than 42 days time served.

The issue in 3) cannot be resolved until the issue in 2) has been resolved. Anyone who argues otherwise, is arguing one or more of the following:

1) Victims of persecution should be immune from prosecution for crimes–like rape–because… well I’ve never actually seen the because part argued coherently.

2) She asked for it.

3) He was, like, really cool and made a couple of totally awesome movies and, like, come on it was, like, so long ago and she’s not even famous.

4) She was totally hot and he was really horny so it’s OK.

5) Diane Von Fostenburg thinks he should go free.

6) He’s married.

7) He’s 76 dude… he’s like old. Isn’t being old punishment enough?

Property

From Will Wilkinson:

I found this little thought experiment, inserted by a Forbes editor into an interview with Amartya Sen, pretty peculiar.

[Note: In the book, Sen describes a problem of divergent views on justice in which you have one flute and three children who want it. One child wants the flute because she knows how to play it, the second one wants it because he is poor and doesn't have toys, and the third one says she made the flute, so she should get it. Who do you give it to?]

This is no knock against Sen, since there’s probably more context in the book. But this is not really such a puzzling question, is it? The correct answer is: It all depends on how “you” ended up with the flute!

Is the flute yours because you provided the materials (which were yours) and paid the kid who made it? If so, you can give it to anyone you want, or you can keep it. It’s yours! Did you steal it from the kid who made it? Then you should give it to the kid who made it. It’s hers! You’ve got no right to redistribute her flute.

What I meant was…

This bears repeating. From Powerline blog:

This what Judge Sonia Sotomayor said in defense of her infamous “wise latina” comments, (emphasis added)

I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.

What – the words that I use, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.

Here are her initial remarks, (emphasis added)

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Now, I’m not going to get all up in arms about Sotomayor. I don’t really expect Obama to nominate anyone that I approve of and she’d be replacing Souter, so I wouldn’t expect the balance of the court to shift appreciably should she ultimately be confirmed.

However, as noted at Powerline blog, this is a rather breathtaking example of dishonesty. Is it isolated? Possibly. But it’s difficult to parse this as anything other than brazen pandering.

Dope

A 20-year old kid took a hit from a bong. Shocked. I’m shocked.

Let’s just hope that this descent in into the netherworld of drugs and vice doesn’t take a crippling toll on this man’s young, vulnerable body.

From Andrew Stuttaford at The Corner,

Look, I don’t blame Michael Phelps for apologizing. He has a living to earn, so he did what he had to do.

In the meantime, I merely note that this broken wreck of a man’s failure to win any more than a pathetic fourteen Olympic gold medals (so far) is a terrifying warning of the horrific damage that cannabis can do to someone’s health—and a powerful reminder of just how sensible the drug laws really are.

The past three Presidents all smoked some dope when they were young. Even the dweeby kid who “didn’t inhale” admitted to passing the bong and “pretending” to toke up.

Let’s be clear: abusing drugs is stupid.

But it’s even dumber to criminalize casual drug use. We’re wasting billions of dollars and destroying millions of lives. The only real dope in the Phelps story is the idiot sheriff that wants to try and prosecute.

Would Barack Obama have been better served if he had been prosecuted for his drug use?

Mr. President, end this absurd and pointless war on our nation’s youth.

The dope’s the one in white:

From Reason:

The Richland County, South Carolina Sheriff’s Department (that’s them above) just obtained an armored personnel carrier, complete with a belt-fed, .50-cal turreted machine gun.  Sheriff Leon Lott has charmingly named the vehicle “The Peacemaker,” and insists that using a caliber of ammunition that even the U.S. military is reluctant to use against human targets (it’s generally reserved for use against armored vehicles) will “save lives.”

The Limits of Rules

From Frederic Sautet at The Austrian Economists,

Bernard Madoff’s alleged $50 billion fraud is another interesting example of the limits of governments to enforce their own rules. …The more rules governments must enforce, the less they will be able to do so adequately. Instead, one should rely on the incentives people have to successfully enforce the arrangements they themselves establish or on the reputation of others to enforce those arrangements. As the WSJ puts it:

The fact is that the only people who seem to have taken concrete action to protect investors from Mr. Madoff are private research shops like Aksia LLC. Its analysts did the real work of figuring out that Mr. Madoff’s claimed investment strategy couldn’t be happening at the volumes he claimed to be trading. Likewise, it was the short sellers who first blew the whistle on Enron, while the SEC was clueless and the firm’s auditors were asleep.

There’s a lesson here for investors and Congress. Instead of shoveling more money and power to the regulators who already had plenty of both, let’s take care not to overregulate the people who actually warned about Mr. Madoff’s miracle returns. Law enforcement is useful in punishing wrongdoers after the fact, which will deter some crooks. But expecting the SEC to prevent a determined and crafty con man from separating investors from their money is no more sensible than putting your life savings with a Bernard Madoff.

Rules aren’t always bad. Rules are often very efficient and sensible, as in much of the criminal law. They can also make sense in some civil situations. Generally, when a rule simplifies things, it’s a good rule. But if the rule–or set of rules–becomes too unweildy or complex, then the rules themselves work counter to their intent.

Richard Epstein makes the point in Simple Rules for a Complex World,

[U]nder the dominant constraint of scarcity, insist that every new legal wrinkle pay its way by some improvement in the allocation of social resources. All too often, today’s law does just the opposite: it makes more complex rules that hamper the productive efficiency of the society they regulate.

The SEC has a lot of rules and a lot of agents and a lot of money to employ both. Madoff was big, in plain sight, and the subject of many complaints. The SEC missed him because they were too focused on all the minutae of complex, inscrutable, profligate regulations. They simply missed the forest for the trees.

Note that the point isn’t that there shouldn’t be any rules, it’s that the rules should be simple, clear, and enforceable. You don’t need new rules to prosecute fraud, you just to attend to the prosecution. This is as true in the Madoff scandal as it is of the collapse credit default swaps. We don’t need more regulation; we need better, simpler and leaner regulation.

Virtual Murder

Following up on yesterday’s item about virtual theft is a story about virtual murder in Japan. (Again, from Eugene Volokh.)

Like the theft, this virtual murder was accomplished through the use of real-world force.

A 43-year-old Japanese piano teacher’s sudden divorce from her online husband in a virtual game world made her so angry that she logged on and killed his digital persona, police said Thursday.

The woman used login information she got from the 33-year-old office worker when their characters were happily married, and killed the character. The man complained to police when he discovered that his beloved online avatar was dead.

Volokh argues that,

Had she engaged in the “virtual killing” from her own account, by using a feature of the game that made such action possible, or even exploiting a bug in the game that made such action possible, it seems to me that this would just be an interesting extra twist in the game’s narrative. Such action should be dealt with by whatever mechanisms the game’s operators provide (perhaps including expulsion of the misbehaving user, if the operators view such conduct as misbehavior), or at most by a breach of contract lawsuit for violating any user license agreement terms — not by the real-world criminal law.

One interesting aspect of this is the amount of harm caused. In the virtual world (Maple Story, in this case) it should be possible for the administrators of the game to restore the dead avatar to life. In which case, the harm inflicted by the virtual murder amounts to at most a few days lost playing time. (And as it happens, Maple Story is free to play.)

This is a great example of the kind of issues that in-game, virtual courts could help resolve conflicts. The game has officially sanctioned marriages, creating invitation and reception mechanisms and even going so far as to reward the marrying couple with wedding rings. But the game did not provide a mechanism for divorce. The AP story is thin, but it seems as though some in-game mechanism to resolve disputes may have mollified the virtual wife.

Again, these cases are currently oddities only because the amounts of money involved in the disputes is still small. But the value of virtual goods will continue to rise, and as they do, these cases will become more common and more serious. (Maple Story is free to play, but players can purchase in game currency and special items by buying Nexon cash with hard currency.)

One absurdity: Maple Story prohibits “same-sex” marriages. Presumably because they think it would be wrong for two 12 year-old boys to virtually marry. Unless one is pretending to be a girl of course. Then it’s OK.

Virtual Law

From Eugene Volokh at, well… at Volokh.com

A Dutch court has convicted two youths of theft for stealing virtual items in a computer game and sentenced them to community service….

The Leeuwarden District Court says the culprits, 15 and 14 years old, coerced a 13-year-old boy into transferring a “virtual amulet and a virtual mask” from the online adventure game RuneScape to their game accounts.

“These virtual goods are goods (under Dutch law), so this is theft,” the court said Tuesday in a summary of its ruling….

Now this might sound odd — why should the legal system police “virtual theft,” especially since the ability to steal, defraud, and the like within a game may be an important part of the game? But things become much clearer when one reads the longer story, from Radio Netherlands Worldwide:

The culprits, who cannot be named due to their age, kicked, hit and threatened their classmate with a knife before the 13-year-old gave in and transferred the Runescape items, an amulet and a mask, to his attackers’ online accounts.

He makes the point that in this case real harm was done and so the ruling isn’t really all that surprising or notable. But he also says, “I continue to think that generally speaking the law shouldn’t prohibit purely in-game “theft,” “murder,” “rape,” and so on.”

I wonder.

Virtual economies are growing ever larger and more influential. The exchange rate for World of Warcraft gold (based on some admittedly back of the envelope calculations) is somewhere around 2.8 cents per gold piece, which means that one WoW gold is equal to about half a Yen.

At that rate of exchange, it’s common to find virtual items with significant real-world exchange value. If in-game theft or fraud robs a person of significant real-world value, I’m not sure that should exist outside the scope of law. Right now, the issue is complicated by terms-of-service agreements that generally prohibit selling virtual items for real cash, but such restrictions are not universal. At some point (sooner than later, I think), virtual fraud and virtual theft will rise to a level of actual harm that will be impossible for real-world law to ignore. I think the question of jurisdiction will be particularly interesting, as will be the development of virtual courts and virtual arbitration.

The largest virtual game worlds make for fascinating social laboratories. Since the worlds are essentially completely planned economies under the control of autocratic rulers with god-like powers, it’s especially fun to watch them struggle with the classic problems of a managed economy, like inflation. Friedrich Hayek would have loved World of Warcraft.

He’d have been a Gnome Tinker, of course.

Also, check out The Synthetic Worlds Initiative at Indiana University.

Obama and the Court

After watching the debate last night, one of my first comments was that Obama’s answer to the question about judicial nominations was quite frightening.

Obama said,

If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Orin Kerr at Volokh cites a recent Rasmussen poll on this issue:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

On this issue, it looks like the candidate and his supporters are very much on the same page.

The problem is that the court’s responsibility is not to make law, but to interpret law. In the specific case that Obama cited, Ledbetter v. Goodyear Tire & Rubber Co., the statute in question clearly indicated, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” The Court held that because Ledbetter’s suit was brought after the 180 period had elapsed that she could not sue under that statute.

Obama would prefer that the Court ignore the law in question and instead issue a judgment based on some necessarily obscure sense of social fairness. But that way lies disaster.

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. (Wikipedia)

If we wish to seek a remedy for issues of social fairness, then we must look to the legislature. The legislature writes law. When we seek a remedy under the law, we look to the courts to apply the law as it is written, not as we might hope it may have been written.

The remedy for Lily Ledbetter lies with Congress to amend the law in question and extend the window of grievance. That Congress failed to amend that law may be failure, but the Court’s application of the law that Congress wrote is not.

If there is any principle of sound governance that I would hope we can all agree on it is the idea that the law should strive, at all times, to be clear, unambiguous, and applied without prejudice.

Heller Affirmed

The U.S. Supreme Court today affirmed the lower court’s ruling in District of Columbia v. Heller.

The ruling essentially affirms that “the Second Amendment protects an individual right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.” Scalia’s opinion (joined by Alito, Kennedy, Roberts, and Thomas) clarifies the meaning of the Second Amendment to the Constitution but allows significant latitude for regulation and gun-control. The ruling is largely silent on the issue of incorporation, although it hints that it would likely decide in favor of incorporation should the issue come before the court. Expect a challenge to Chicago’s ban to be formulated within the year.

I’m not an avid follower of the court, and I only occasionally read the opinions in full, so I was struck by Scalia’s often combative tone and his contemptuous dismissal of Stevens’s dissent. I agree that Stevens’s arguments regarding the definition of “to keep and bear arms” are tortured and forced, and I do think that Stevens’s position is wrong–as it pertains to law, philosophy, and history. (I enjoyed Scalia’s destruction of the argument that the idiomatic use of “arms” would control in the latter half of “to keep and bear arms” while the conventional usage would control in the first half. Scalia likened it to saying that a man, “filled and kicked the bucket.”)

All in all, the decision does as much as I thought it might: it affirms a limited individual right to own and use ordinary weapons for legitimate purposes disconnected with formal military service. It opens the door for further rulings clarifying the bounds of the right and–possibly–incorporating it (which I would applaud: the enumerated rights mean little if they are no safeguard against the tyranny of the respective States).

What did bother me was Breyer’s dissent. His argument rests on the idea that the court should rely on an “interest balancing” test in its evaluation of constitutional guarantees. Essentially, Bryer is arguing that if the court or the legislature finds a compelling interest in vacating a portion of the Constitution, it is wholly within their rights to do so. That of course, renders the Constitution meaningless. Scalia’s response to Breyer’s dissent: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” If the people find a provision of the Constitution no longer workable, there is a means by which they can correct the Constitution: by amendment. In the absence of amendment, however, it is the legislature’s responsibility–and the court’s obligation–to protect and defend the Constitution as it written.

One final note: I find it, frankly, nearly impossible to imagine the founders agreeing with the dissent. David J. Schenck makes the point clearly on scotusblog.com,

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

The arguments Justice Stevens marshals in his dissent are tortured and seem–at least to me–entirely a-historical. The Stevens dissent strikes me, for that reason, as slightly duplicitous. The Breyer dissent is the more honest argument. Breyer acknowledges that the intent of the founders is largely irrelevant in his analysis, whereas Stevens seems willing to twist history and logic to support his position.

The debate, after all, has never really been about what the founders meant, but rather if we cared what the founders meant. Either the Constitution constrains the government or it does not. Breyer’s position is that it does not. And that’s a position that I find deeply troubling.