June 29, 2006

Hamdan v. Rumsfeld

I think we all understand that the mainstream media cannot be trusted to analyze Supreme Court decisions within even a basic level of competence.

Accordingly, I've printed out all 101 pages of Hamdan v. Rumsfeld, and now that I am home from work, I will attempt to read through it. I may not finish, but even if I only get the highlights, I am confident that I will understand it more thoroughly than the smartest person on staff at USA Today or the L.A. Times could ever hope to.

But for now, I have some Gitmo related questions.

I hear that the ruling does not mean that the U.S. must release the Guantanamo Bay prisoners. (Democrats and foreign types who want us to close the prison are probably disappointed about that.) So, if that means that holding these whatever you want to call them people at Gitmo is okay, then is it only that trying them by military tribunal is not okay?

If so, is the only reason we're insisting on trying them in the first place because that's the only way we can kill them? Otherwise we'd just hold onto them until the end of the war, like we've always done with people we capture on a battlefield.

And if just holding onto them until the end of the war is something that every country has always done in every war, why do some people want us to close down Gitmo? Are people like Carter and Koffi Anon arguing that we don't have the right to hold people we capture on a battlefield?

What do the Gitmo critics want us to do with these prisoners, release them like they were illegal aliens? If so, won't they end up back here again, just like illegal aliens?

Now, if the only reason we are trying these detainees is so we can get the death penalty on them, then we shouldn't be risking the chance that they might be acquitted. I'd rather they just languish in jail until the war is over. And I'm not talking about the Iraq war. As we all know, the "War On Terror" will be going on for a long long time.

If these guys are now "prisoners of war," so be it. I haven't heard of any requirement in international law that a country must unilaterally release prisoners of war before a war is finished. Effectively, these guys probably already have a life sentence. So why bother with a military tribunal at all?


Update: Okay, page three of the decision says, "Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years . . ."

So again, why do we even need to put him on trial? Can't we just hold onto him indefinitely?


Update 2: This opinion is kicking my ass. I'm at page 27. Someone put some coffee on.


Update 3: Fuck if I'm going to sit here reading this crap on my vacation when I'm a) not getting paid for it, and b) not getting graded for it.

The pool is calling. I'm out.

Oh, here's the USA Today article I cracked on earlier. Not so cocky now, I guess.


Update 4: Check this out:

Hamdan my walkinÂ’ cane
Hamdan my walkinÂ’ cane
Hamdan my walkinÂ’ cane
IÂ’m a gonna catch that midnight train
All my sins they've taken away, taken away

If I die in Gitmo jail
If I die in Gitmo jail
If I die in Gitmo jail
Send my body back C.O.D.
All my sins they've taken away, taken away

Hamdan my book of Koran
Hamdan my book of Koran
Hamdan my book of Koran
IÂ’m gonna get drunk sure as youÂ’re born
All my sins they've taken away, taken away

It just came to me. Make of it what you will. Here's The Knitters' version.

That's why I'm the cool connector... makin' connections between things that maybe... don't need connectin'.

Posted by: annika at 06:06 PM | Comments (13) | Add Comment
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June 15, 2006

Hudson v. Michigan

Reading some of what passes for journalistic analysis regarding today's Supreme Court decision in Hudson v. Michigan, only reinforces my opinion that 90% of all reporters are idiots.

Check the AP reportage for example:

The Supreme Court ruled Thursday that police armed with a warrant can barge into homes and seize evidence even if they don't knock, a huge government victory that was decided by President Bush's new justices.

The 5-4 ruling signals the court's conservative shift following the departure of moderate Sandra Day O'Connor.

Dissenting justices predicted that police will now feel free to ignore previous court rulings that officers with search warrants must knock and announce themselves or run afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

Justice Antonin Scalia, writing for the majority, said Detroit police acknowledge violating that rule when they called out their presence at a man's door, failed to knock, then went inside* three seconds to five seconds later. The court has endorsed longer waits, of 15 seconds to 20 seconds.**

The errors in that article are too numerous to list. For one thing, the cops in the Hudson case didn't "barge in," they announced themselves first then waited before trying the door, which was unlocked. But more importantly, the Supreme Court never said that police "can barge into homes and seize evidence even if they don't knock."

On the contrary, the Court upheld the knock rule. The Fourth Amendment still requires police executing a search warrant to knock first, announce their presence and provide the occupants a reasonable opportunity to open the door voluntarily. Today's ruling did not change that rule.

What the Court did do is apply the brakes to an out of control "exclusionary rule." Hudson v. Michigan is a quite sensible decision, and not even particularly conservative, in my opinion. I wonder if the AP reporter even read it.

Proponents of an expansive exclusionary rule want it to apply to any evidence obtained in the prosecution of a suspect, whenever the police fail to follow a procedural rule. In other words, some people believe that a judge should throw out all evidence against a defendant whenever the police fuck up, no matter what kind of fuck up it was. As Scalia noted, that would mean a "get-out-of-jail-free card" in many cases. This is what is known in the popular culture as "getting off on a technicality."

So, wouldn't it have been more accurate for the AP to describe today's decision as the Court limiting the ability of criminals to "go free" on "technicalities?"

The Hudson case does not overturn the exclusionary rule. It simply says that if police screw up on their constitutional requirement to knock before serving a search warrant, and the search later turns up a bunch of evidence that proves the dude was guilty as sin, the judge does not have to throw out all the evidence and let the guy go. I think that's totally reasonable. The exclusionary rule still applies when the cops commit more serious constitutional violations, like searching a house without a warrant.

Critics of the Hudson decision will say that without the exclusionary rule police might simply ignore the knock and enter requirement. Maybe so, maybe not. The Court pointed to other means available to punish cops for failing to knock, civil lawsuits and disciplinary measures for instance. Also, the Court pointed out that the knock requirement isn't even a hard and fast rule. Police can legally enter without knocking if they have reason to believe that evidence might be destroyed were they to knock first.

But the main point is that the cure would be much worse than the disease. If we were to let criminals go free just because the police failed to knock even though they had a valid search warrant, there would undoubtedly be crooks walking around who should be behind bars. The Hudson decision prevents this potential miscarriage of justice and restores balance to a small part of Fourth Amendment jurisprudence. Or to put it in Johnny Cochran-ese:

Just 'cuz the cop didn't knock,
don't mean we let the perp walk.
I'm glad the new Court is refusing to expand the exclusionary rule beyond its already unreasonable scope. I just wish that the media would explain the reasoning behind today's decision instead of trying to scare people unnecessarily.

I give the New York Times opinion writer more slack for his wrongheaded piece, because at least that's an editorial. I would be disappointed if I didn't find wrongheadedness in a NYT editorial.

To be fair, some reporters seem to understand the Hudson case better. Two examples of more balanced articles can be found at CNN's site and at The Christian Science Monitor. Although I do have a semantic nit to pick about the Monitor's assertion that the decision is a setback to "privacy rights." While the right to privacy is related to Fourth Amendment freedoms, the two are not identical. As everyone should know by now, the right to privacy is not enumerated in the Constitution, whereas protection from unreasonable searches and seizures is.
_______________

* Again, the AP reporter "forgot" to mention that the criminal's door was unlocked.

** Here the AP reporter "forgot" to mention that the standard for deciding how long to wait is based on how long it would take a suspect to flush the evidence. Therefore, a reasonable wait time might be only a couple of seconds, depending on the particular evidence in the case.

Posted by: annika at 07:10 PM | Comments (30) | Add Comment
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