Psychopolitik 2.0

Nathan Newman, on a collision between the Court’s anti-knock ruling & “Castle doctrine” laws protecting people from prosecution for defending their life & home:

Now, the text of such Castle Doctrine laws don’t actually protect you if you shoot a police officer, but if the police don’t identify themselves when they enter a home, it’ll create a pretty bad legal tangle for juries when defendants can claim they thought the officer was an unknown intruder against whom they had the right to shoot on sight.

Yeah, the kind of tangle that results in a man sitting on death row for reacting to a late-night home invasion by shooting the intruder, only to find out it’s the cops looking for his neighbor.  Nathan Newman, meet Corey Maye.

Remember the “knock and announce” rule? Well, it just got knocked over the fence:

A divided Supreme Court ruled today that evidence can be used against a defendant even when seized in violation of a long-standing rule requiring a knock on the door before executing a search warrant. The 5-4 decision, written by Justice Antonin Scalia, ran counter to previous decisions requiring suppression of evidence obtained in violation of the so-called “knock-and-announce” rule. […]

Today’s case, Hudson v. Michigan , stemmed from a 1998 drug and weapons search, authorized by a warrant, of a home in Detroit. While the officers yelled, “Police, search warrant!” before opening the door, they chose not to knock, they said later, for fear of being shot on the way in.

Having acknowledged that they broke the rule required under the Fourth Amendment’s search-and-seizure protections, the question today was whether the evidence was then properly admitted at a trial that led to the conviction of Booker T. Hudson Jr. or whether it should have been suppressed under the “exclusionary rule” established by the Supreme Court to deter unlawful police conduct.

Basically the cops can now break the rules & as long as they say “whoops” it doesn’t matter in court. Wonderful.

First thing leaping out at me about this is the stated excuse by the police, that they feared being shot. Curious logic behind that: they assumed that the person knew they were coming and prepared to open fire, yet knocking or not wouldn’t be a factor since they announced their prescense anyway. On top of that, the fear excuse itself is ridiculous — these are COPS we’re talking about! The risk of being shot is part of their job, the type of person that cannot do their duty by the book out of fear for themselves is the wrong person to have a gun & a badge. Besides, based on the description of the search, them being shot at should’ve been expected, not feared (although, it didn’t happen).

It may seem like a tiny formality, but the rules turned out the way they did for a reason. To me, it sounds like the rule not only protected people from unreasonable searches (bursting into the wrong house unnanounced) but also in a way protected the cops by giving a way to distinguish between a cooperative suspect & someone they may have to use deadly force against: the type of person that would hear the police say they’re the police & knock before entering probably isn’t the type to be waiting right behind the door with an AK.

So why did they rule the way they did? What say we go straight to the source:

Justice Scalia delivered the opinion of the Court with respect to Parts I, II, and III, concluding that violation of the “knock-and-announce” rule does not require suppression of evidence found in a search. Pp. 2-13.

(a) Because Michigan has conceded that the entry here was a knock-and-announce violation, the only issue is whether the exclusionary rule is appropriate for such a violation. Pp. 2-3.

(b) This Court has rejected “[i]ndiscriminate application” of the exclusionary rule, United States v. Leon, 468 U. S. 897, 908, holding it applicable only “where its deterrence benefits outweigh its ’substantial social costs,’ ” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363. Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected by the constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant.

Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

I followed that first citation & found the following line:

Indiscriminate application of the exclusionary rule - impeding the criminal justice system’s truth-finding function and allowing some guilty defendants to go free - may well generate disrespect for the law and the administration of justice.

One thing that I’ve noticed about judicial philosophy is that it is never an all or nothing view: “strict constructionists” at times rule based on things that couldn’t possibly have been gleaned from the intent of the ones who wrote the law in question, & “living constitution” types occasionally refer to intent. There are gray areas, and the reaction to coming across those has an effect that multiplies over time. Since they refer to this previous ruling for that rhetoric about “indiscriminate application”, it’d be appropriate to wonder if maybe this is a chicken-or-egg thing: does the exclusionary rule cause disrespect for the law, or does disrespect for the law (by the law enforcers) cause the exclusionary rule to apply more than expected?

This ruling was ostensibly about the 4th Amendment. Somewhere along the line though, they came to that gray area & decided not because the intent up to that point suggested to them that the evidence in this case was not to be excluded, but because of a stereotypical “law & order” view that suspects have too many rights in this country. IMO this is a dangerous view for the highest court in the land to hold, even if the substance of the ruling itself proves minimal.

Others on this:

-Orin Kerr, noting the oddity of Scalia using a “living constitution” view to decide on this.

-Radley Balko — who was actually cited in Breyer’s dissent — questioning the statement within the ruling that civil suits are a more acceptable deterrent to overaggressive cops.

-SCOTUSblog anlaysis. Excerpt:

…the opinion regularly employs language that questions the real value of the knock-and-announce rule. The privacy interests are analyzed in less-than-expansive ways, especially when contrasted with the opinion’s lament over the loss of criminal evidence. The right at issue, the opinion remarks at one point, is a “right not to be intruded upon in one’s nightclothes.” It also places much stress on the uncertainties that police confront in trying to obey the knock-and-announce rule. It does not directly question that the rule remains alive, but it relies mainly on a concession by the state of Michigan for that proposition (emphasis mine)

Sure, the Pentagon is tracking anti-war groups:

The American Civil Liberties Union sued the U.S. Defense Department on Wednesday to demand information it says the government has collected on groups opposed to the war in Iraq.

The group says the Pentagon has been monitoring anti-war groups and individuals and has compiled lists on people it sees as potential threats but who the ACLU says are exercising their free-speech rights.

Look who that group includes though…

The latest suit is filed on behalf of some 30 groups, including the Americans Friends Service Committee, also known as the Quakers (emphasis mine).

So despite the current government of the US being dominated by people who ostensibly consider religious expression not only to be protected, but to be elevated to unquestionable heights, religious-belief based opposition — in this case, to a war — is grounds for being tracked.  Why?  Because the State says “god” is on their side.

The celebration around him being killed is the most blatant example of moving-the-goalposts we’ve seen in a long time.

Consider the lofty goals of the occupation of Iraq, & by the administration’s (illogical) association the “war on terror”.  You mean to tell me we’ve gone from “Bin Laden: dead or alive” + “we will be greeted in Iraq as liberators” & visions of democracy blooming all across the entire region to celebrating the bumping off of a self-proclaimed underling of Bin Laden who needed help to use a rifle & was within range of taking out in an area of Iraq that Saddam didn’t control but was spared so he could conveniently be pointed at for insinuations that al-qaeda & Saddam collaborated, all the while Bin Laden is in the wind & even some of the neo-imperialists are questioning the wisdom of having invaded Iraq?

If no one else will say it, I will: Zarqawi’s death is completely irrelevant to the situation.  It’s good that he’s dead, but only in the way that it’s always good when murderers are made to stop. This is not a strategic victory in the slightest, do not let anyone get away with acting as if it is.

To the city government of Philadelphia, what’s yours is theirs:

One of South Philadelphia’s biggest names in cheesesteaks is in a bit of a legal pickle for a lunch-line political statement against immigrants who don’t speak English. The city’s Commission on Human Relations yesterday filed a discrimination complaint against Geno’s Steaks over signs that read: “This is AMERICA … WHEN ORDERING SPEAK ENGLISH.” […]

According to the complaint, which was served on Geno’s yesterday afternoon, the restaurant is in violation of two sections of the city’s antidiscrimination laws: denying service to someone because of his or her national origin, and having printed material making certain groups of people feel their patronage is unwelcome.

“Commission on human relations”. I’m assuming that’s in the building right next to the re-education camps…

Disregarding what you think about the sign itself — for the record I agree with the sentiment, IMO if you don’t know enough english to say “cheesesteak!” you don’t deserve one — the assumption that a private business cannot have their own rules as to accepted customer conduct is insane. Once you make that call, all other routines businesses operate around come into question: is it discriminatory to hillbillies to turn away customers that are barefoot & shirtless? If you kick someone out of a fancy resteraunt that smells like they haven’t bathed in a month, are you discriminating?

Here’s what we’ve lost sight of: even when not discriminating by the legal meaning of the term we’re discriminating by having any rules at all, & there is nothing wrong with that. Look at the definition:

1. a. To make a clear distinction; distinguish

Stores that don’t allow people to come in barefoot or powerful reeking discriminate between people who care about hygiene & people who don’t. Of course, that isn’t what is being talked about here. What the city government of Philadelphia means by discrimination is the more popular view: turning away people based on racial grounds. Is that what Geno’s is doing though?

Look at the sign again: “This is america, when ordering speak english”. There is no mention of a race at all. The rule applies equally to anyone who shows up, whether they’re mexican or japanese — or even “white” people from, say, germany. Try to order a cheesesteak & some fries in german and see what happens…

Found this article on the situation in Somalia interesting:

Islamic militiamen who have seized control of the capital fired guns in the air and cut electricity to makeshift cinemas to prevent Somalis from watching the World Cup, witnesses said, and some enraged residents were planning to hold a protest Sunday.

The Islamic Courts Union broke up gatherings to watch the soccer matches on Saturday, witnesses said. A strict interpretation of Islamic law often bans Western films and television as immoral.

“As soon as the Islamists took over the security of our city, we thought we would get freedom. But now they have been preventing us from watching the World Cup,” said Adam Hashi-Ali, a teenager in Mogadishu. (emphasis mine)

Waitaminute…how does this make sense? He thinks Islamists taking over would mean FREEDOM??

The saying “be careful what you wish for” applies here — you’d have to be an idiot to think muslim extremists wouldn’t try to ban every trace of western culture — but it goes further than that. Later in the article is a clue as to what he means by it:

The growing power of the Islamic Courts Union has forced the U.S. and other world powers to take notice amid concerns that radical Islam could be taking hold.

The United States supported a secular alliance of warlords that was fighting the Islamic militia, in an attempt to root out terrorists. But that plan backfired — most alliance leaders are in hiding after weeks of fighting killed at least 330 people.

Figures. What people like that teenager in Somalia refer to as “freedom” is a sort’ve cultural independance. Regardless of how restrictive the actual culture is, people like him see outside involvement as worse. But because of that, he just now realizes that the islamists had no intention of respecting freedom at all. Kinda too late for that…

This logic that “freedom” is little more than “let us torture each other in peace!” sounds familiar. Hmm, where have I heard that before…

I know I’ve used this example before, but the movie Braveheart offers a good illustration (which is why so many conservatives loved it). In that film Mel Gibson, as the Scottish freedom-fighter William Wallace, barely utters a single sentence without demanding “freedom” for his countrymen. But this isn’t the Left’s “freedom” to do whatever floats your boat. For instance, when Wallace tells the English, “Go back to England and tell them there that Scotland’s daughters and sons are yours no more. Tell them Scotland is free,” he’s not saying that the Scots are now adopting a new no-fault divorce law or a judgment-free attitude toward buggery.

Obviously, Wallace’s freedom still leaves room for arranged marriages, primogeniture, harsh justice, mandatory consumption of haggis, and all sorts of things which fall under the rubric of “authority and prescription.” The point is that Wallace’s Scottish freedom is the freedom to be Scottish — even if that means living according to rules which are just as authoritarian as England’s.

The above quote is Jonah Goldberg, right-wing compulsive pop-culture name-dropper.

So let’s recap: people overseas end up supporting islamists because of an interpretation of “freedom” that neglects that there is no society without individuals, & right-wingers stateside argue that this conception is just fine. Yet they’re the ones most rabid about intervening in these countries, ironically violating their own (mis)conception of “freedom” when others apply it.

Says a lot about this whole careening-towards-WW3 thing we’re on, doesn’t it?

If you’re reading this, you know that Nucleus is gone. The spam & handling of trackbacks & tags was too much. If you’ve linked to a post in the past couple days, change the link, otherwise everything is fine for the most part. If I see any glitches in the import they’ll be fixed, no worry.

Update: some of the posts have words missing at the top or hyperlinks deactivated. Argh…

Rather than try to fix every single post, I’m going to edit the ones that show up on the front. From there all will be well anyway, no sense getting all bent out of shape over stuff that’s been up for months.

Update 2: For readers using Feedburner, change your links!!! The
previous feedburner address stopped updating, use this one instead:
http://feeds.feedburner.com/psychopolitik/wp

When Markos Moulitas ZuniwhateverIdontfeellikespellingit jumps on a bandwagon, it’s like walking in uninvited to the best party on the block & taking a shit in the punchbowl.

Found out from Logan that Kos has listened to some of the arguements that Democrats should consider being skeptical of the State for once in order to appeal to people other than wannabe FDRs — and completely flunked in interpretation:

A Libertarian Dem believes that true liberty requires freedom of movement — we need roads and public transportation to give people freedom to travel wherever they might want. A Libertarian Dem believes that we should have the freedom to enjoy the outdoor without getting poisoned; that corporate polluters infringe on our rights and should be checked. A Libertarian Dem believes that people should have the freedom to make a living without being unduly exploited by employers. A Libertarian Dem understands that no one enjoys true liberty if they constantly fear for their lives, so strong crime and poverty prevention programs can create a safe environment for the pursuit of happiness. A Libertarian Dem gets that no one is truly free if they fear for their health, so social net programs are important to allow individuals to continue to live happily into their old age. Same with health care. And so on. (emphasis mine)

This isn’t “Libertarian Dem”, let alone left-libertarianism. It’s the same populist garbage that came out before, with “but we’re with you on the drugs, and maybe the guns” thrown in. This is so transparent it actually doesn’t deserve a sarcastic “nice try”.

See, the reason for the rift between libertarians & statist-progressives is because we define “freedom” & “force” in completely different ways. To a libertarian of any stripe, to be free means to be in a state of existence where the only restraint on ones actions is that they may not apply restraints to others: the only thing I cannot do is tell you what you cannot do and/or harm you for doing or saying different. Force is the application of restraint to someone who has not either requested it or attempted harm against you — the societal equivalent of a “first strike”, if you will. Libertarianism rejects the idea that it is justified for some to override the wants of others, even if claimed to be for their own good. Statist-progressives, on other hand, regard freedom as being unrestrained by not only force but by lack of resources: if you have the right to do something but not the time, space, or money, you are not free to a statist-progressive. As for force, the sentiment of “Jared“, a commenter on Reason.com’s Hit’N'Run, says it all:

Libertarians like to talk about Government being the only one to inititate force, but can’t economic hardship act as a force?

IE, paying two poor single mothers 300 dollars to fight. Legal according to the free market right? But who could deny the presence of an economic force on a person.

Its like the invisible hand shoving you.

Funny, I don’t hear many professional boxers that came from the slums complaining that they effectively whoop their fellow man for money. Is one form of fighting for money somehow morally better in their minds*?

Anyway, notice the implication here: if you need money for something and don’t have it, someone offering you money to do something is morally no different than putting a gun to their head. Logically this clearly does not follow — according to this, I’m being oppressed because I can’t afford a studio with one of these.

This is not to belittle the conditions they worry about at all. Honestly, to not even care it would take a heart of stone or a mind of Ayn Rand — which another Kossack mistakes for the entirety of libertarianism and concludes “f**k libertarians”. The profile of Objectivists is inflated on the internet, the overwhelming majority of libertarians are concerned people who would gladly aid folks who need it by voluntary means. Try asking us sometime.

Now, while Kos is way off in calling himself a “libertarian democrat”, it isn’t a contradictory term. The way I see it, a “Libertarian Democrat” would just be a gradualist, more politically palatable left-libertarian. I personally don’t see the need for the modifier — as I’ve explained before, libertarianism is a “left” philosophy in the original sense of the word, in that its foundation was as a rebellion against the status-quo of unchecked authority — but it’s useful for clearing up distinctions, and some emphasize that position (BradSpangler, for example). Best way I can sum it up would be this:

A libertarian wants to limit government. A left-libertarian has a distinctive reason to limit government, seeing an interventionist State as being inherently a tool of the elite.

From this, I’d say that a “Libertarian Democrat” would be a Democrat who is suspicious of government power and seeks to reduce it, with emphasis on the parts most blatantly used by narrow interests. Whatever remains, they would want to make it as direct & non-burdening as possible. For an example, take social assistance:

-A typical democrat would say the more the better and really not pay attention to costs or infringements on individual liberty.
-A typical libertarian would oppose it, for obvious reason.
-A left-libertarian would say the reason more people are in such positions than private means could serve is because government interference in the market rewarded inefficiency & systematically shut people out that otherwise would’ve done fine.
-A Libertarian Democrat would reason that, IF there politically HAS to be such a thing, it should be as direct & non-burdening as possible — a Citizen’s Dividend perhaps**.

That was simple. How about pollution?

-Typical Democrat: arbitrary regulations saying you can emit X amount of this and Y amount of that, with all the buereacracy & potential for corruption & outlandish error it entails.
-Typical Libertarian: “if you get sick, sue ‘em”
-Left-Libertarian: “If it weren’t for government interference in the market, royally screwing up the environment wouldn’t be so profitable. Yank it & watch people adjust.”
-Libertarian Democrat: “ditto what the left-lib said. I say we gradually pull away the influencing factors so polluters actually start feeling in their pockets what bystanders feel in their lungs. They’ll figure it out. Or get sued, whichever comes first.”

Notice the common theme here: Libertarian tactics (cutting the power of government) for Democrat reasons (concern for the proverbial “common man”). Since the Republicans have become such state-worshipping nutjobs, a little rebellion would go a long way for the Dems.

That said, I’m still firmly on the other side of the libertarian division of labor for now, so it’s up to others to make the sausages here. It’d be nice if it worked though.

(* - This is not to say they are the same thing, nor to somehow slight boxing as a sport. My point is that the differentiating factor USED here seems to be the amount of money offered.)
(** - while there can be plenty of arguement over funding, such an idea is not inherently anti-libertarian. Charles Murray has recently written an entire book endorsing the concept, and the sentiment can be traced back through the history of classical liberalism — Thomas Paine & Henry George, for example.)

Road Rage” is soooooo five minutes ago:

To you, that angry, horn-blasting tailgater is suffering from road rage. But doctors have another name for it

 

Andrew Sullivan:

…spare me this nonsense about knowing that torture will follow every war. If I had been informed in early 2003 that the liberation of Iraq would be conducted outside the Geneva Conventions, I could not have supported what would have been an unjust war in its execution. Period. If the president had been candid and explained that this war would require America to jettison its long history of humane detention policies and become a nation that practices and outsources torture, I would have been unable to support the war. (emphasis mine)

Jon Henke:

…no more complaining that our enemies do not abide by the Geneva Convention. If we abandon the rule of law and our treaty obligations when it becomes convenient to do so, we can hardly complain that they’ve done so when it was convenient for them. Indeed, by excusing ourselves, the administration tacitly condones this kind of behaviour from others. (emphasis mine)

Odd, I would’ve thought looking at the rationale from the ideological drivers of the invasion would’ve sent out a warning signal. I mean, interwoven in the arguement was a view that the US is too restrained by “international opinion” when it comes to military strategy, what reason was there to think there’d be a gulf between macro & micro? I don’t recall anyone in the neo camp saying anything about simply setting our own boundaries by moral means — “we don’t need the Geneva Convention because we won’t torture anyway, it’s not right” — which would show they rejected not the concept of limits in and of itself, but the assumed source of them.

As readers of this site know by now, I reject the idea of “international law” myself, so I’m not looking at any of this as “damn, we’re breaking Geneva”, just “damn, we’re torturing people while claiming we’re better than that”. The difference is why I reject it: government is little more than monopolized force, & there can be no such thing as a global monopoly on force. International law does not exist, what we refer to by that name is just interests butting heads behind a flimsy cloak.