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.

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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:

Leon Lott

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.