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CHAVEZ V. MARTINEZ AND MIRANDA:

The Supreme Court is about to hear the latest attempt by police, prosecutors, and conservative activists to overturn the famous 1966 decision in Miranda v. Arizona. You might remember that a couple of years ago, in a case called Dickerson v. United States, an activist panel of judges on the United States Court of Appeals for the Fourth Circuit chose to ignore Miranda and declare that a statute that Congress passed in 1968 and which had almost never been invoked in subsequent cases had actually overturned Miranda and we just didn't know it for 30 years. The Supreme Court emphatically reversed the Fourth Circuit, in a 7-2 decision, with Chief Justice Rehnquist, no fan of Miranda in the past, writing the majority opinion.

Now comes a second attempt, this time taking a slightly different tack. Under 42 U.S.C. Section 1983, a statute passed after the Civil War, a citizen can sue state and local officials for violating his or her constitutional rights. The Supreme Court added an additional requirement in the 1960's and 1970's that the right be "clearly established"; the idea being that officials should not be punished for not anticipating the development of newly-found constitutional rights that did not yet exist at the time that they engaged in the conduct complained of in the suit.

Miranda contains two basic requirements, which have both been clearly established since the original decision in 1966: (1) that police give the now famous warnings before commencing a custodial interrogation of a suspect, and (2) that, if the suspect invokes either the right to remain silent or the right to counsel, the interrogation must cease. The plaintiff in Chavez v. Martinez was interrogated about his alleged involvement in an officer shooting while he was in his hospital bed and in terrible pain due to a fresh gunshot wound, and despite the fact that he had repeatedly asked that the interrogation stop because he was in so much pain. So, the case for liability ought to be a slam dunk. Indeed, the Ninth Circuit Court of Appeals followed its earlier, established precedents in finding the officer liable.

The officer has taken the case to the Supreme Court, supported by conservative groups and prosecutors, arguing that Miranda actually just stands for the proposition that when a criminal suspect is tried, no statement taken without warnings or after an invocation of the Miranda rights by the suspect may be used. In other words, officers, have the right to flout Miranda's requirements, as long as they are willing to give up the right to use the statement at trial.

This is, to put it bluntly, a highly revisionist view of Miranda. In fact, the Miranda opinion derived its novel legal rule (before then, courts would look at all the circumstances to determine if a statement given in custody was voluntary) from dissatisfaction with oppressive police interrogation tactics, which are described in great detail in the Miranda opinion. The Court's concern was not that these statements were used at trial; rather, the Court's concern was that police were using oppressive tactics such as incommunicado interrogations and psychological torture to obtain confessions of questionable reliability. If the officer's argument is adopted in the Chavez case, not even an innocent person subjected to these tactics would be able to sue the officers or the police department for using them. (The officer's lawyers do concede that conduct that is so oppressive as to "shock the conscience", such as actual physical torture, might be prohibited. But in practice that test does not provide much of a deterrent to police departments, because it is very hard to meet and is reserved for the most heinous of conduct.)

Further, in addition to being historically inaccurate, the practical effect of a "Miranda only prohibits the use of statements at trial" rule would simply be widespread disobedience of Miranda. An established exception allows un-Mirandized statements to be used by prosecutors to "impeach" suspects, i.e., to expose that the criminal defendant is lying in his or her testimony. The idea behind this is that the purpose of a trial is to seek the truth, and the Miranda right should not function as a sword that allows a defendant to perjure him- or herself without consequence. However, the combination of this with a no-civil-liability rule is predictable. A few years ago, it was discovered that numerous police departments in California were intentionally questioning "outside Miranda", as they put it, to obtain impeachment evidence (or to keep the defendant from testifying in his or her own defense based on the threat that the statements given to interrogators could be used against the defendant). These officers would even sometimes openly say to the suspects something to the effect of "you've just invoked your Miranda rights, so we can't use your statement against you, so tell us what really happened". This was one of the cases, prior to Chavez v. Martinez, in which the Ninth Circuit developed its rule permitting civil liability for Miranda violations. If the Supreme Court rules in the officer's favor, no police department will follow Miranda; there is no downside to violating it (because of no civil liability), and a tremendous upside in obtaining statements that can be used against the suspect if he or she testifies in his or her own defense.

The officer's lawyers, along with some important scholars such as Eugene Volokh, argue that civil liability would interfere with the war on terrorism, because officers may want to question outside Miranda to prevent future terrorist acts rather than to obtain evidence against the suspect. Here's the link to Volokh's argument:

http://volokh.blogspot.com/2002_11_24_volokh_archive.html#85715207


There are at least three responses to this. First, and most importantly, in 1984 the US Supreme Court recognized in New York v. Quarles that there was a "public safety" exception to Miranda that allows police to question suspects without warnings when there is an imminent threat to public safety (in that case, it was to find out where a weapon that remained at large was). Any questioning of a terror suspect to determine whether and what imminent threats to public safety exists would not be unconstitutional under Quarles. Second, the war on terrorism is mostly a federal concern, and civil liability for federal officers is controlled by the Bivens doctrine, not 42 U.S.C. Section 1983. The importance of this is that Bivens recognizes that there can be "special factors" in particular cases that "counsel hesitation" and can permit the denial of liability. Certainly the desire to prevent imminent terror attacks would be such a "special factor". Third, even if a terror suspect's claim for damages for a Miranda violation went to a jury, it isn't likely that a jury would award much money, or indeed any money, to such a plaintiff. The connection between the Chavez case and terrorism is ephemeral, and serves as a nice reminder that there are some people out there who would like to wrap their pet projects (like bringing back the "good old days" of overly aggressive police interrogation) in the war on terror.
posted by Dilan at 12:26 PM

 
THE DIFFERENCE BETWEEN NO JURISDICTION AND CONSTITUTIONAL:
There is an underreported story about the Bush Administration's plan to use military commissions to try terrorist suspects. The Bush folks swear up and down that the commissions are constitutionally permissible; they cite the case of Ex Parte Quirin, where such commissions were upheld during World War II (though note that World War II was a declared war and that Congress had authorized the military tribunals in the war declaration).

But check out this story:

http://www.washingtonpost.com/wp-dyn/articles/A2778-2002Nov17.htm

The key paragraphs are these, which discuss the chatter that has been heard recently about dismissing civilian court charges against Zacharias Mussaoui and taking him to Cuba for a military trial:

"Moussaoui, who is accused of conspiring with Binalshibh in the Sept. 11 attacks, has said he wants to call Binalshibh as a witness in his trial. That prospect, coupled with the recent decision of Justice Department officials to take a more active role in the handling of his case, has led to the theory that federal officials will move to dismiss the case and put Moussaoui, who is defending himself with the aid of court-appointed lawyers, before a military tribunal.

"But government sources said the Justice Department has no interest in doing so. Because Moussaoui is in this country, he could try to fight such a move in federal court. That could open the tribunal process to a constitutional challenge, something the Bush administration wants to avoid."

These paragraphs indicate that the Bush Administration isn't so sure of the constitutionality of the military tribunals after all. You see, under Johnson v. Eisentrager, a 1950 Supreme Court case, the courts arguably have no jurisdiction to hear habeas corpus claims made by enemy aliens who are outside the territorial limits of the United States. Johnson has nothing to do with the constitutionality of military tribunals, or anything else; it simply deprives the courts of jurisdiction to hear a certain type of habeas corpus claim by a certain type of military detainee. As the Washington Post reports, the last thing the Bush Administration wants to do is administer a military tribunal to anyone present in the United States, because then the Johnson jurisdictional bar would not be present, and the courts could rule on the merits of the of the constitutionality of military tribunals. Of course, this wouldn't trouble the Bush Administration if they were really sure that the tribunals, which were never specifically authorized by Congress, despite Congress' specifically enumerated power under the Constitutional to make rules for captures on land and water, were actually constitutional. It is precisely because the tribunals are likely unconstitutional that the Bush administration has no intention of doing anything that might allow a civil court challenge to a tribunal's decision.

(I might add that the Bush Administration lied about this point when it was selling its tribunal plan to the country, claiming that the defendants had a civilian court appeal route because they could always take their claims to the US Supreme Court. They may do so, but the government is prepared to argue that the Supreme Court has no power to hear the case. Some right of appeal.)
posted by Dilan at 9:20 PM

 
THE FLAT-EARTHERS AND CONDOMS:
Take a look at this article and tell me that the Flat Earth Society hasn't taken over the White House:

http://www.newsday.com/news/opinion/ny-vpcoc143002251nov14,0,7803300.column

President Bush's base includes a fair number of people who believe that all nonmarital sex, gay or straight, casual or loving, promiscuous, monogamous, or onanistic, is morally wrong. That is a silly, anachronistic moral belief, rejected in practice if not in ideology by the vast majority of the country, but it is their's to have if they wish to hold it. But few things anger me more than when these sorts of beliefs end up corrupting the sciences. Twenty years ago, they tried to do it with evolution, by enacting a "balanced treatment" law in Lousiana that required the teaching of "creation science" alongside evolution, even though "creation science" was nothing more than teaching that scientific evidence either supported or did not refute the natural history recounted in the Bible. Thankfully, the US Supreme Court struck that curriculum down as unconstitutional.

Now, the religious right is waging war on condoms, making false and stupid statements in an effort to scare people away from relying on them. Let's be very clear on this: anyone who says that condoms are not effective against disease or pregnancy is either an idiot or a liar. That person is not a scientist. I am not a scientist myself, but I am able to say that with 100 percent conviction. A condom is a physical barrier. Yes it can break. Yes it can slip off. Yes people forget to use them sometimes, or engage in risky activities such as oral sex without one. Yes there are some diseases that transmit from or to the base of the penis and are thus transmittable despite the use of a condom. But a person who claims or implies that a condom is not at all effective against disease or pregnancy is akin to someone who claims that a fence doesn't keep out burglars. The claim refutes itself.

The White House's campaign, therefore, is nothing short of disinformation. Taking truthful information off of websites, reassessing the government's position, etc., simply means that the White House does not wish to tell the truth on this subject.

All this would be an interesting study in throwing a bit of red meat to the political base, if condoms weren't such a life-and-death issue. Unwanted pregnacies destroy the lives of women and children, they trap people in loveless and abusive relationships, they cause people to drop out of school and take dead-end jobs or go on welfare, they lead to abortions that conservatives claim to loathe. Sexually transmitted diseases are a life and death issue as well.

Already, schools that receive federal sex education funds are not allowed to mention condoms in their sex ed. classes, except to say that they fail, slip, and break. How many kids might decide it's not worth it to use a condom because of that incredibly misleading information? How many might end up pregnant, or HIV positive? If the official federal government position is that condoms are not effective, will condom manufacturers be required to take the truthful claims that they are off of their products? Will condoms have to be taken off the market? It's not a silly question; the federal Pure Food and Drug law requires that over the counter medical products be safe and effective; if the government decides that condoms are ineffective, they could be prohibited.

And the truth is that this has nothing to do with science. The religious right likes the idea of sex having consequences, because they feel: (1) that such consequences will deter nonmarital sex, and (2) that even if they do not deter such sex, the people who engage in such sinful activities are only getting their just deserts. Remember that many people claimed not so long ago that HIV was God's punishment for homosexuality, and Jerry Falwell and Pat Robertson also said that 9/11 was a direct result of God's "withdrawing His protection" of the US due to our tolerance of homosexuals. For the religious right, devices that prevent pregnancy and disease are bad things. (I should add they have other biblical reasons for this position, including a belief that the agrarian imperative that humans go forth and multiply still has application in the modern world.)

There are also related flat earth policies that spring from the same impulses of religious conservatives, including, specifically, an opposition to international family planning programs that is supposedly based on language that might condone abortion but in fact is consistent and unwavering whatever language is put in the program disclaiming support for abortion. Religious conservatives oppose birth control as well as abortion, so they use the more controversial issue of abortion as a cover for their programs that continue to foist poverty and patriarchy on the third world by denying them access to contraception. (This was a central facet of Christopher Hitchens' justly famous critique of Mother Theresa.) Another example is the push to force welfare recipients into marriage. The reason welfare recipients don't stay with the fathers of their children is usually due to the fathers' abuse or irresponsibility, or the lack of love between the partners. Government-enforced shotgun marriages do nothing for poor women except satisfy the moral scolds who hate the idea that some unmarried woman out there might be having sex.)

But the religious right, and its supplicants in the Bush administration, knows it can't win on the moral issue. Although many folks in the South espouse these traditional values (though there is no evidence that they actually practice what they preach), and even Clinton was careful not to openly endorse masturbation (he fired Joycelyn Elders over it) or sexual freedom (Saturday Night Bill practiced it, but Sunday Morning William always was contrite for it), any politician who campaigned on trying to stop people from having sex outside of marriage would be killed in the polls. So instead of the honest, losing argument that condoms are immoral, we get the dishonest, unscientific argument that condoms don't prevent pregnancy or disease.

Science is a threat to religious belief, no doubt about it. The fact that we can now enjoy sex with anyone we want to while running only a minimal risk of disease or pregnancy is a tremendous advance. Think of all the people who are in better relationships, who derive more sexual satisfaction, who have gotten in touch with their bodies and their orientations and have found the people who really make them happy because of the fact that you no longer have to risk killing yourself or ruining your life by having sex. Religious zealots who have political power are dangerous precisely because they will fight to stop the advance of science, harming all of us, including those who do not share their religious belief and whose lives they have no right to ruin. But fighting scientific progress in no way changes scientific truth. Zealots placed Galileo under house arrest for life for his heretical conclusion that the earth revolved around the sun. As the sentence was read, Galileo is said to have muttered "e pur si muove", which translates to "and still it moves". All the while the White House and its supporters scream and yell about the ineffectiveness of condoms, they will continue to prevent pregnancies and save lives. Truth marches on.
posted by Dilan at 8:53 PM

 
THE TELLING CONSERVATIVE ARGUMENT THAT "10 PERCENT" PLANS ARE UNCONSTITUTIONAL:
Affirmative action in college admissions has long been an issue where people's concern about the issue is disproportionate to the issue's importance. The truth is, only a few white and asian students every year at any given college are denied admission, and in most cases, the resulting injury is merely that such students are forced to go to a slightly less selective school. It's really not that big of a deal. But it inflames people, because it involves race, merit, and the madly competitive world of college admissions. Thus, judging by the behavior of civil rights organizations, you would think that this issue was really the make or break issue in terms of the advancement of the interests of minorities (rather than anti-poverty programs, more humane policing, or enforcement of antidiscrimination laws in such areas as housing and employment). Similarly, judging by the rhetoric of white conservatives, you would think that the advocacy of these programs discredits the civil rights establishment and represents a fundamental betrayal of Martin Luther King's legacy.

I am personally ambivalent about affirmative action. In an ideal world, I would hand out admissions to selective colleges solely on merit-- the recent revalations about how people secure spots for their children in the most selective preschools in New York by making huge monetary and nonmonetary contributions is a great example of the sort of corruption that is engendered when admissions committees have lots of discretion. And I think it is an outrage that the University of California continues to dole out admissions to its most selective schools to big donors. Standardized tests and lotteries have their drawbacks, but at least they make it harder for the not-so-gifted rich to buy their way into the best colleges and careers.

But we don't live in an ideal world, and in the world we live in, where atheletes, musicians, children of big donors, "legacies", and all sorts of others get in with substandard grades, letting a few minorities in offends no great principle. There are, however, compelling arguments against affirmative action in admissions that don't have anything to do with principle; specifically, such programs tend to benefit the most well-off of minorities, because it is very difficult for someone who has grown up in a poor neighborhood and survived 12 years of substandard education, with outdated books, schools full of guns and drugs, and a "Blackboard Jungle" learning atmosphere to suddenly score close enough to the cut-off SAT score to be put over the top by affirmative action. The black and hispanic middle class do very well, though.

In the wake of court rulings and ballot initiatives restricting affirmative action, a good compromise has arrived however; the "1 percent" or "4 percent" or "10 percent" solution. These programs guarantee admission into selective public universities to all those within the top X percent of their high school graduating class. I favor the compromise because it reaches down and picks up the poor kids who went to the lousy schools, rather than middle class minorities who really haven't been significantly disadvantaged. But the interesting thing is that I learned today that there is a strong conservative movement opposing such programs on constitutional grounds.

Read this post in an influential conservative weblog (stating, sensibly, that the X percent programs are constitutional), and then scroll down and read the feedback:

http://www.discriminations.us/archives/000257.html

Apparently, there are a lot of conservatives who believe that any government action that is intended to benefit blacks and hispanics, no matter how race-neutral, is unconstitutional. Blogger John Rosenberg answers that position well enough, but I find the whole discussion scary. The position that many conservatives apparently believe is that the Constitution is not only color-blind, but requires the continuation of white supremacy.

Put another way, all interest groups in a democracy are "rent seekers", i.e., they want the government to enact programs that benefit their particular group. Some of this rent seeking involves explicit preferences; there is a strong argument that such rent seeking by racial groups is constrained by the Fourteenth Amendment. But rent seeking also encompasses facially neutral legislation that nonetheless benefits the particular interest group. For instance, many farmers support relaxing the embargo with Cuba. That's a form of rent seeking, because the farmers' motivation is to increase their sales and their income. But that type of rent seeking is fundamentally different than a direct farm subsidy.

What the conservative responses on the discriminations blog seem to be indicating is that any effort by the government to improve the lot of blacks and hispanics is unconstitutional. Under that interpretation, the Fourteenth Amendment, intended to strip the badges of slavery and discrimination from blacks, actually prohibits any attempt to ameliorate the legacy of slavery. How that is different from out-and-out racism I do not know.
posted by Dilan at 7:09 PM

 
MORE ON THE ELECTION:
Check out my post in the Slate fray:

http://slate.msn.com/?id=3936&m=4930529
posted by Dilan at 9:26 AM

 
BUSH'S VICTORY:
Before saying anything about the election results, I have to start with the caveat. We all have a tendency to nationalize midterm congressional elections. This is really dumb, when you think about it. Contested congressional elections are decided by swing voters. Swing voters make up their minds at the last minute. And since they don't vote straight ticket, party affiliation, and specifically whether the President is of the same party as the candidate, isn't particularly important.

That said, everyone else is going to search for the meaning of the election results, and if I were to come up with a theory for this, it would be that something beats nothing every time. The modern Democratic party offers no alternative to the Republicans. Support for the Iraq war is a mile wide and an inch deep, yet few prominent Democrats oppose the war, and those who do don't trumpet it or run commercials on it or make it a part of their platform. As for tax cuts for the rich, when you bother to take 20 seconds to explain to a voter that the Bush tax cut is going in bulk to the richest 1 percent of the population, support evaporates quickly. But Tom Daschle can't whip up his troops to support cancelling future tax cuts-- quite the opposite, he encouraged those who opposed the cuts not to tell the public of their opposition, so as not to embarrass those Senators who voted for the tax cut.

The problem with the Daschle strategy should have been apparent long ago. If the opposition party brooks no serious opposition on the two major issues of the day, why should anyone vote for them. This election should be read as a repudiation of Dick Morris' triangulation strategy, which only worked when Republicans were openly supporting numerous extremist positions like abolishing the Department of Education and slashing Medicare benefits. Those days are gone. If the Democrats persist in being a second conservative party, they will continue to lose, over and over again, as befits an organization that offers no alternative to the voters.

I can't help but think of all those Democrats who bashed on Ralph Nader and his supporters for "costing" the incompetent right-winger Al Gore the presidency in 2000. Based on the Clinton record, Al Gore should have beaten Bush by 10 points (just as Bush 41 won in a landslide over Dukakis, running on the Reagan record), and Nader would have been a footnote. Gore lost because of his own incompetence, not because of Nader. And if the Democrats had nominated a candidate that actually stood for something, they would have carried the Nader voters in the first place.

I should note that despite running against the worst Republican candidate for anything I have ever seen in my life (Bill Simon), and despite a huge campaign warchest, Gov. Gray Davis, another member of the Al Gore wing of the Democratic Party, has only a 3 percent lead with 50 percent of the precincts reporting in the California Governor's race. Davis only has 46 percent of the vote, and a Green Party candidate, Peter Camejo, has 5 percent of the vote.

The Republican Party is a party of ideas. Tax cuts, building an empire, sacrificing of civil liberties to fight terrorism, privatizing social security and finding private sector solutions to the health care crisis, school choice, and less regulation of the private sector are all ideas. Many of them are wrong, but they are ideas. Except for school choice and social security, the national Democratic Party has no consistent and articulated position on any of these issues.

Taking strong positions on the issues will offend some swing voters. And it will certainly offend campaign contributors. But political tactics are only effective, in the long term, when they are engaged in the service of ideas. The fundamental problem with the Democratic Party, post-Clinton, is that tactics became the end, and not the means.
posted by Dilan at 11:22 PM