Author: Dave Hoffman

4

The Market Likes Torture: Should Uncle Sam?

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National Review commentator Jonah Goldberg offers this essay defending torture. I think Goldberg’s piece is an unusually foolish and corrosively cynical pastiche, dressed up as home-spun common sense. But go ahead, give him a read. Then come back for my thoughts.

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3

Scientists Say The Sun Rises in the East

This story (via Andrew Sullivan) on Iran President Mahmoud Ahmadinejad’s view of Israel and the holocaust, contains the following paragraphs:

“Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail,” [a news organization] quoted Ahmadinejad as saying.

“Although we don’t accept this claim, if we suppose it is true, our question for the Europeans is: is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?” he said.

“If the Europeans are honest they should give some of their provinces in Europe — like in Germany, Austria or other countries — to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it.”

Historians say six million Jews were killed in the Nazi Holocaust.

Those crazy historians and the things they “say.”

It isn’t as though Reuters doesn’t believe that it can state things as facts. Other examples of facts, shorn of attribution, from the article include:

Ahmadinejad’s earlier “call in October for Israel to be ‘wiped off the map'” “sparked widespread international condemnation.”


“Close allies when Iran was ruled by the U.S.-backed Shah, Iran and Israel have become implacable foes since Iran’s 1979 Islamic revolution.”

Jews trace their roots in Israel back to Biblical times.

13

Are Subway Searches Really the Top of the Slippery Slope to Korematsu?

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Dan’s “Rational Security” post and Jason’s provoking democratic searches response seem to me to have occupied part of the field of what I wanted to say here, which is that random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.

A bigger issue for Dan and privacy absolutists: not all anti-terror policies lead to Korematsu! Although I’m significantly more sympathetic to slippery slope arguments than I used to be, thanks to Volokh, I think Dan’s argument here is off-target. The differences between the internment cases, involving racially suspect classifications, and the searches here are evident. Most significantly, in a factual finding that commentators on this site appear to be ignoring, these really are random searches; the police aren’t permitted discretion to search any particular suspect class. Dan argues nonetheless that checking bags of subway entrants is a first step toward totalitarianism. I’d like to hear more about the mechanisms of this particular slippery slope. But until I do, my intuition is that a policy that burdens equally all residents is significantly less troubling than one that does not.

Dan also, I think, ignores my point that the court really didn’t defer to the government here, at least as deference is normally understood. Sure, the court is tougher on plaintiff’s witnesses, but that is because they didn’t have the relevant expertise. What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant? That isn’t how our system works.

I take Dan’s big point to be that this is an unwise policy. It (according to him) misallocates scarce dollars on a policy that will not have significant deterrent effects. I disagree that simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence. But putting that aside, there is a space between what the Fourth Amendment permits and what smart police policy ought to be. (Thanks to my colleague Craig Green for reminding me of this). To conflate the two, i.e., to require the police to justify anti-terror searches as the least intrusive method necessary, or the most effective strategy policy possible, would simply be to substitute the anti-terror judgments of one group of elites (judges and scholars) for another (elected officials and police authorities). What is the normative argument for that result?

4

NYC Subway Searches: A Response to Dan

I was almost persuaded by Dan’s thoughtful post on the NYC subway search decision. But not completely, and I think our disagreements are worth further discussion.

1. Dan’s primary beef appears to be with Judge Berman’s deference toward the government’s weighing of risks of terrorism on the subway, and the likely effects of random bag checks. Dan says that “if the court defers to the government in this regard, it is essentially rubber-stamping the government in this determination.” I think this significantly overstates what the court actually did. The two places where the court really defers to the government are: (1) determining that terrorists are risk averse (Op. at 24); and (2) random searches “add uncertainty and unpredictability to the planning an implementation of a terrorist attack, which, in turn, increases the risk of failure and helps to deter an attack.” (Id.)

I’ve previously argued that these conclusions flow from behavioral research, and I find it unsurprising that the Judge would credit the government’s experts and discount those of ACLU. It isn’t as if the Judge completely ignored the plaintiffs’ contentions and genuflected to the NYPD’s authority. Plaintiffs’ witnesses, as discussed in the opinion, just didn’t have the necessary expertise to rebut powerful testimony from experienced law enforcement officers. A few testified to personal experience with the “intrusive” search policy and their resulting anxiety; one, an attorney and expert in transit design, testified that individuals can “easily evade” the checkpoints; and one, a consultant with a security company, testified that because “you can walk away” from an inspection, the deterrent effect is “close to zero.” (Op. at 19.) However, this last witness had “no discernable training or experience in subway transit security” has “never had access to classified intelligence about terrorism” and (tellingly) has never “evaluated intelligence information for the purpose” of advising on counter-terrorism measures. (Op. at 19.) In short, the court deferred to the government’s experts because they were significantly better informed about the relevant risks than plaintiffs’ experts. That’s simply the way the adversary system works: it isn’t a rubber-stamp.

2. Dan’s second argument concerns the value of marginal deterrence of attacks on the subway. He wonders: “[i]s it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?” This is obviously a tough choice, on many levels, and it is cold blooded and unpleasant to contemplate. (For more on this, see the work of Jonathan Baron.) But it is a decision I ultimately think ought to be left to democratic policy-makers in the sunlight of the public space, and not ill-informed judges in the quiet of the judicial chambers. The NYC subway is essential to the life of the City: it is “the largest, most heavily used subway system in the United States”; its disruption could have “widespread economic consequences . . . and create public fear and demoralization.” (Op. at 8.) If forced to the tragic choice, and if I still lived in NYC, I’d much prefer that resources be spent protecting the subway than a mall. I’m happy that I don’t have to make that choice and live with the consequences, but someone does, and NY politicians seem a good choice. New Yorkers learned of this policy before the last election. If they thought its cost-benefit calculus was as out of whack as Dan suggests, perhaps the result of the vote would have been different.

3. Dan finally argues forcefully that “I don’t believe that ‘minimal’ [privacy loss] can describe a massive program of random searching of people’s baggage.” The Court’s arguments in this regard are: (1) notice (Op. at 38); (2) random selection (Id.); (3) the right to refuse; (Op. at 39); and (4) limited scope of a brief search to determine if there are explosives present. Dan may feel that privacy loss is social, i.e., that minimal personal intrusions ought to be added up, to create an interpersonal mix of disutility. But it is not clear to me that this is possible or that this should be the law. To the extent that we’re talking about individual privacy loss, I agree that the court is somewhat cavalier about the choice to exit the search and the subway, which is in tension with the opinion’s recognition of the subway’s central importance to the life of ordinary New Yorkers. But still, it seems like a very small price to pay for increased safety.

Also, when reading the decision it occurred to me that the police likely were happy to be sued in this case, because it increased attention paid to the program, got extra media exposure, and generally made it somewhat more likely that the program will have the deterrent effects its boosters claim for it.

0

Mexico To US: We’re Sorry About Calling You Barbaric

That seems to be the message of the Mexican Supreme Court’s recent decision to allow extradition to the U.S. of life-imprisonment eligible accused criminals. Duncan Hollis, my colleague and friend who is guest blogging at Opinio Juris, has the whole story. He suggests that Mexico is being compelled to forgive us by recent Congressional conditional appropriation legislation.

20

Weird E-Bay Auction

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Via one of my contracts students, I found this bizarre ebay auction. The winning bidder paid $611.00 for the following item [emphasis added]

This is the PREMIUM BUNDLE BOX only. It would include bonus accessories, if it were the actual PREMIUM XBOX 360! DOES NOT Come with 20GB Hard Drive, Console, HD Cables, Wireless Controller, Headset! In other words for those of you who do not understand, YES YOU ARE GETTING AN EMPTY BOX SO DO NOT ASK! Great for gags! DO NOT bid if you don’t intend to buy! No excuses, I will not retract bids for you! You will be reported to eBay if you backout after winning the auction. I Cannot be more clear! This is not even a factory made xbox 360 box. I made it myself, just a few minutes ago. It does not contain an Xbox 360 console, just the Xbox 360 home-made box. this box is great hand made by me says XBOX right on it[.] It doesn’t look anything like the picture I included in the auction. It looks much better, in my opinion.

The student (rightly) noted that a disappointed buyer would have a hard time making out a fraud claim. Other defenses and excuses (mistake, unconscionability, no meeting of the minds, etc.), seem similarly problematic. The only possible wriggle-room I can think of – if the buyer does in fact feel aggreived when she or he receives the empty box – is that the auction history seems to bear some marks of puffing.

So, I guess someone is getting a $600+ empty box (not even an XBox Box!) under the tree, or by the menorah, this holiday season. They better appreciate it.

6

Alito’s Footnote 10

Judge Alito’s June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians has gotten some recent attention on the blogs and in the news media. Fried’s cover note was a sure red flag that this would be better than a mere thank you note: “I need hardly say how sensitive this material is, and ask that it have no wider circulation.”

I haven’t seen extended focus on footnote 10 of the memo, which might become relatively significant at Judge Alito’s confirmation hearings. Alito’s strategy memo is a case for not directly attacking Roe. However, he didn’t want the readers of the memo to think that this strategy “even tacitly concede[s] Roe’s legitimacy”. Quite to the contrary, footnote 10 states:

The case against Roe v. Wade has been fully and publicly made. See, e.g., A. Bickel, The Morality of Consent 27-29 (1975); A. Cox, The Role of the Supreme Court in American Government, 112-114 (1976); Epstein, Substantive Due Process By Any Other Name, 1973 Sup. Ct. Rev. 167-185; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920 (1973). In Akron, the Court’s reponse was stare decisis and the “rule of law.” [emphasis added; small typos corrected; formatting made simple]

It is this last sentence that caught my eye. The implicit message of the paragraph is “lots of really smart folks have demonstrated that Roe was wrongly decided and the only thing the court could say in response was ‘stay the course’!” The sentence makes it significantly harder for Alito to follow Justice Roberts’ path, and rely on paeans to the rule of law and stare decisis in response to questions about Roe. He’s already told us what he thinks about that response, and it isn’t much. Instead, Alito might be forced to actually say that he believes Roe should be reversed.

I think that the memo makes it incrementally more likely that we will see a filibuster, and somewhat more likely that we’ll see a test of the flypaper thesis of supreme court nominations I proposed here.

0

Markel in Slate

My friend and our former co-blogger Dan Markel has a new essay out in Slate on the death penalty that is well worth reading. Dan analogizes the recent news about wrongfully executed Ruben Cantu to the movie “The Life of David Gale.” In the essay, Dan links to his relatively new Harvard CR-CL piece about retributivism and the death penalty, which is also worth a read (although it will take somewhat longer to digest than the Slate piece.)

2

Senator Specter on Terrell Owens

My state’s senior senator, Arlen Specter, who has lots on his plate, held a news conference this morning:

[He said that] it was “vindictive and inappropriate” for the league and the Eagles to forbid [their] all-pro wide receiver [Terrell Owens] from playing and prevent other teams from talking to him.

“It’s a restraint of trade for them to do that, and the thought crosses my mind, it might be a violation of antitrust laws,” Specter said, though some other legal experts disagreed.

“I am madder than hell at what he has done in ruining the Eagles’ season,” the Pennsylvania Republican said. “I think he’s in flagrant breach of his contract and I believe the Eagles would be within their rights in not paying him another dime or perhaps even suing him for damages.”

But Specter said, “I do not believe, personally, that it is appropriate to punish him (by forcing him to sit out the rest of the season). He’s not committed a crime, he’s committed a breach of contract. And what they’re doing against him is vindictive.”

There are several statements here that are interestingly wrong. One worth thinking about is the idea that the Eagles are punishing Owens by enforcing the contract’s “conduct detrimental” clause. On one level this can’t be right – the Eagles are paying their employee for not working, hardly an onerous result. But theory notwithstanding, reading the arbitrator’s decision, it sort of feels like punishment. Doesn’t it?

7

On Becoming a Supreme Court Clerk

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This article about David Bragdon, who was just hired to clerk for Justice Thomas, is worth reading, especially for those who miss their A3G fix. Bragdon is significantly more forthcoming in print than I would have expected. Two choice quotes:

“I think conservative justices are more likely to hire conservative clerks,” he said. “I interviewed with Justice Thomas and his clerks, and his clerks really drilled me on my judicial philosophy, both to see how much I knew and to test my ability to argue various issues.”

“There could be some shifts in the way the Supreme Court decides certain issues [based on the new justices coming to the court],” he said. “I don’t think Roe vs. Wade will be overturned, there aren’t enough votes to change that decision, but other key issues could be affected.”

Too bad the interviewer didn’t ask the obvious follow-up question: which “key issues” does this rising Supreme Court clerk think will be affected by the confirmation of Justice Roberts and the possible confirmation of Judge Alito?

(Hat Tip: Howard B.)