Quotulatiousness

June 24, 2013

Read an excerpt from Rise of the Warrior Cop by Radley Balko

Filed under: Books, Law, Liberty, USA — Tags: , , , , — Nicholas @ 16:09

There is an excerpt from the book Rise of the Warrior Cop in the July issue of the ABA Journal:

Are cops constitutional?

In a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U.S. Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the framers, professional police officers were unknown,” Roots writes.

The founders and their contemporaries would probably have seen even the early-19th-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history — early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome.

If even the earliest attempts at centralized police forces would have alarmed the founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.

Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy SEALs or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops — despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.

June 23, 2013

Two remarkable press releases on the Snowden case

Filed under: China, Government, Law, Russia, USA — Tags: , , , , , — Nicholas @ 10:46

First, here’s the official Hong Kong government’s statement:

Mr Edward Snowden left Hong Kong today (June 23) on his own accord for a third country through a lawful and normal channel.

The US Government earlier on made a request to the HKSAR Government for the issue of a provisional warrant of arrest against Mr Snowden. Since the documents provided by the US Government did not fully comply with the legal requirements under Hong Kong law, the HKSAR Government has requested the US Government to provide additional information so that the Department of Justice could consider whether the US Government’s request can meet the relevant legal conditions. As the HKSAR Government has yet to have sufficient information to process the request for provisional warrant of arrest, there is no legal basis to restrict Mr Snowden from leaving Hong Kong.

The HKSAR Government has already informed the US Government of Mr Snowden’s departure.

Meanwhile, the HKSAR Government has formally written to the US Government requesting clarification on earlier reports about the hacking of computer systems in Hong Kong by US government agencies. The HKSAR Government will continue to follow up on the matter so as to protect the legal rights of the people of Hong Kong.

And here’s a statement from Wikileaks:

Mr Edward Snowden, the American whistleblower who exposed evidence of a global surveillance regime conducted by US and UK intelligence agencies, has left Hong Kong legally. He is bound for a democratic nation via a safe route for the purposes of asylum, and is being escorted by diplomats and legal advisors from WikiLeaks.

Mr Snowden requested that WikiLeaks use its legal expertise and experience to secure his safety. Once Mr Snowden arrives at his final destination his request will be formally processed.

Former Spanish Judge Mr Baltasar Garzon, legal director of Wikileaks and lawyer for Julian Assange has made the following statement:

“The WikiLeaks legal team and I are interested in preserving Mr Snowden’s rights and protecting him as a person. What is being done to Mr Snowden and to Mr Julian Assange — for making or facilitating disclosures in the public interest — is an assault against the people”.

To the vast amusement of many commentators, the reported route out of Hong Kong leads to Russia, with other stopping points including Cuba and Venezuela. It’s like a free press/civil liberties tour of the planet!

Ecuador press law to mandate coverage of government propaganda items

Filed under: Americas, Law, Liberty, Media — Tags: , , , , , — Nicholas @ 10:28

Ecuador has a new law on the books that may force the media to carry government propaganda or risk prosecution:

Under Ecuador’s new Communications Law, however, journalists may have to pay far more attention to ribbon-cutting ceremonies and other government PR events. Article 18 of the law forbids the “deliberate omission of … topics of public interest.” But this wording is so vague that nearly any action by local, state, or national government official could be considered of public interest.

“Newspapers don’t have enough journalists or space to cover all these events. Radio programs don’t have enough air time,” Paúl Mena, president of the Ecuadoran Journalists’ Forum, told CPJ. “If the government starts demanding coverage, there are going to be problems.”

More conflict between the media and the Correa government seems inevitable under the Communications Law, which was approved by the National Assembly on June 14 and will go into effect next month. Not only does the law create a state watchdog entity to regulate media content, but it is filled with ambiguous language demanding that journalists provide accurate and balanced information or face civil or criminal penalties. “This is completely crazy,” Monica Almeida, an editor at the Guayaquil daily El Universo, told CPJ. “The law is designed to regulate everything we do.”

[. . .]

The 44-page law contains 119 articles. In interviews with CPJ, Ecuadoran journalists were at a loss to pick out the worst provisions since they view nearly all of them as serious violations of press freedom.

For example, under the law reporters are now required to earn a journalism degree. Rather than serving as a neutral referee, the Superintendence of Information and Communication — the government’s new watchdog agency — could be used by Correa to simply bash the press. And reporters are especially incensed by Article 26 that prohibits “media lynching.” This is defined as “the dissemination of concerted and reiterative information … with the purpose of undermining the prestige” of a person or legal entity. Media outlets found violating this provision could be ordered to issue public apologies and would be subject to criminal and civil sanctions that are not specified in the legislation.

One magazine editor in Quito, who asked to remain anonymous, said the article seems designed to thwart investigations. That’s because such in-depth reporting often requires publishing a series of stories over several days or weeks that could be construed as harassment.

June 22, 2013

US charges against Snowden were filed on June 14th

Filed under: China, Government, Law, USA — Tags: , , , , — Nicholas @ 09:10

It apparently takes a week for the US government to publicize that it has laid charges…

Federal prosecutors filed espionage charges against alleged National Security Agency leaker Edward Snowden, officials familiar with the process said. Authorities have also begun the process of getting Snowden back to the United States to stand trial.

The charges were filed June 14 under seal in federal court in Alexandria, Va. — and only disclosed Friday.

Snowden has been charged with three violations: theft of government property and two offenses under the espionage statutes, specifically giving national defense information to someone without a security clearance and revealing classified information about “communications intelligence.”

Each of the charges carries a maximum of 10 years in prison.

Snowden, who is a former employee of defense contractor Booz Allen Hamilton, leaked details about far-reaching Internet and phone surveillance programs to The Guardian and The Washington Post earlier this month. He revealed his identity while in Hong Kong, where it is believed he is still hiding.

It’s not clear whether the extradition will be straightforward:

Andy Tsang, Hong Kong’s police commissioner, said that if an extradition request was sent from a country that had a “mutual legal assistance agreement” with Hong Kong, its government would “handle it in accordance with current Hong Kong laws and systems.”

Simon Young, a professor at Hong Kong University’s faculty of law, suggested it was unclear whether Snowden would win or lose any attempt to fight extradition.

He said theft was listed in the U.S.-Hong Kong extradition treaty. “There is an offence listed in the treaty of unlawful handling of property, but this raises the question as to whether information is property and the answer is not clear,” he said in an email.

Interesting – and probably inevitable – legal wrinkle for the NSA

Filed under: Law, Liberty, Technology, USA — Tags: , , , — Nicholas @ 08:58

At Outside the Beltway, Doug Mataconis links to an interesting article:

It’s only been a few weeks since we learned to true scope of the National Security Agency’s data mining of the phone records of American citizens, but already lawyers in civil and criminal cases across the country are seeing the database as a potential discovery goldmine:

    The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database.

    “What’s good for the goose is good for the gander, I guess,” said George Washington University privacy law expert Dan Solove. “In a way, it’s kind of ironic.”

    Defendant Terrance Brown is accused of participating in the 2010 murder of a Brinks security truck driver. Brown maintains his innocence, and claims cellphone location records would show he wasn’t at the scene of the crime. Brown’s cellphone provider — MetroPCS — couldn’t produce those records during discovery because it had deleted the data already.

    On seeing the story in the Guardian indicating that Verizon had been ordered to turn over millions of calling records to the NSA last month, Brown’s lawyer had a novel idea: Make the NSA produce the records.

[. . .]

This particular criminal case is, of course, on where the Federal Government is a party to the case as a prosecutor. As such, the Judge must weight not simply the government’s argument that the information requested is classified and thus should not be disclosed, but also the question of whether the prosecution has a duty to turn over the evidence to the Defendant. As a general rule, the prosecution must turn over any evidence that is potentially exclupatory or which tend to call some aspect of the prosecution’s theory of the case into doubt. The rules for what must be turned over vary from state to state, and the Federal Courts have their own rules, but they all generally follow the principles set down by Brady v. Maryland, which established the general rule that Defendants are entitled to be provided with exculpatory evidence that prosecution may have against them.

Of more interest, though, is the likely hood that attorneys may try to gain access to this NSA metadata in cases where the Federal Government is not involved, such as state court criminal proceedings or even civil matters such as divorces

June 21, 2013

How many laws have you broken today?

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 10:09

Alex Tabarrok on the changes to US criminal law over the years: No One is Innocent.

I broke the law yesterday and again today and I will probably break the law tomorrow. Don’t mistake me, I have done nothing wrong. I don’t even know what laws I have broken. Nevertheless, I am reasonably confident that I have broken some laws, rules, or regulations recently because its hard for anyone to live today without breaking the law. Doubt me? Have you ever thrown out some junk mail that came to your house but was addressed to someone else? That’s a violation of federal law punishable by up to 5 years in prison.

Harvey Silverglate argues that a typical American commits three felonies a day. I think that number is too high but it is easy to violate the law without intent or knowledge. Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding.

[. . .]

If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law .

Faced with the evidence of an non-intentional crime, most prosecutors, of course, would use their discretion and not threaten imprisonment. Evidence and discretion, however, are precisely the point. Today, no one is innocent and thus our freedom is maintained only by the high cost of evidence and the prosecutor’s discretion.

June 20, 2013

The world map of modern slavery

Filed under: China, Law, Liberty, Russia — Tags: , , , , , — Nicholas @ 14:05

In The Atlantic, Olga Khazan talks about the countries that appear on this US State Department map of human trafficking:

World Map of Slavery, 2013

China, Russia, and Uzbekistan have been named among the worst offenders when it comes to human trafficking, according to a State Department report released Wednesday, joining Iran, North Korea, Cuba, Sudan, and Zimbabwe on the bottom “tier” of the U.S. human trafficking rank.

Their lower designation means the U.S. may sanction those countries with measures like cancelling non-humanitarian and military assistance, ending exchange visits for government officials, and voting against any IMF or World Bank loans.

China, Russia, and Uzbekistan had previously been on the “Tier 2 Watch List,” a middling designation for countries that show little progress in making strides in preventing forced labor. Because they had been on the “Watch List” for four years, the State Department was obligated to either promote or downgrade them.

In China, the one-child policy and a cultural preference for male children perpetuates the trafficking of brides and prostitutes.

“During the year, Chinese sex trafficking victims were reported on all of the inhabited continents,” the report found. “Traffickers recruited girls and young women, often from rural areas of China, using a combination of fraudulent job offers, imposition of large travel fees, and threats of physical or financial harm, to obtain and maintain their service in prostitution.”

However, the State Department also singled out the country’s epidemic of forced labor, in which both internal and external migrants are conscripted to work in coal mines or factories without pay, as well as its continued use of re-education hard labor camps for political dissidents.

However, it’s also worth keeping in mind that there are two common definitions of human trafficking in use, one of which is an outrage to common decency while the other is an attempt to conflate sex work with slavery:

1) The transport of unwilling people (usually women, but of course can at times be either men or children) into forced prostitution. This is of course illegal everywhere: it’s repeated rape just as a very start. It is also vile and we should indeed be doing everything possible to stamp it out.

2) The illegal movement of willing people across borders to enter the sex trade. Strange as it may seem there really are people who desire to be prostitutes. People would, other things being equal, similarly like to be in a country where they get a lot of money for their trade rather than very little. Given these two we wouldn’t be surprised if people from poorer countries, who wish to be in the sex trade, will move from those poorer countries to richer countries. And such is the system of immigration laws that many of them will be unable to do this legally: just as with so many who wish to enter other trades and professions in the rich world. You can make your own mind up about the morality of this but it is obviously entirely different from definition 1).

Supreme Court refuses to hear appeal of Rob Ford’s conflict-of-interest case

Filed under: Cancon, Law, Media, Politics — Tags: , , , , , — Nicholas @ 11:07

The Toronto Star must be feeling devastated by this:

The Supreme Court of Canada says it will not hear an appeal in a conflict-of-interest case against Toronto Mayor Rob Ford.

The court dismissed it with costs, but did not give reasons for the ruling.

Lawyer Clayton Ruby was trying to restore a lower court decision from November 2012, in which Superior Court Justice Charles Hackland ruled Ford be removed from office.

However, as part of Ford’s appeal, the decision was overturned by an Ontario Divisional Court panel in January 2013.

Deputy mayor Doug Holyday said this was all about antagonizing the mayor.

“There was no reason to take this to the Supreme Court; there was very little likelihood of it every getting put before the Supreme Court,” Holyday said.

Update: The CBC reports that Ford feels vindicated by the decision:

Toronto Mayor Rob Ford expressed relief Thursday that a conflict challenge that previously threatened to oust him from office won’t be revived in the country’s top court.

“I’m so happy this is finally over. I’ve been vindicated and we can move on,” Ford told reporters in Toronto, about two hours after the Supreme Court of Canada rejected an application to hear a final appeal in the much-publicized conflict case that began last year.

As is customary, the Supreme Court gave no reasons for dismissing the appeal, but legal experts — including the lawyer who filed the application himself — had acknowledged the odds of reviving the conflict of interest case were a long shot.

The court only accepted 12 per cent of appeal requests made last year.

Toronto resident Paul Magder filed an application in an Ontario court last year, alleging that Ford had violated conflict of interest legislation when he participated in a council vote that absolved his need to pay back funds donated to his private football foundation.

The UK debate over online porn

Filed under: Britain, Law, Media, Technology — Tags: , , , , — Nicholas @ 09:04

Willard Foxton says that the real problem is that the two “sides” of the argument are not even talking the same language:

Claire Perry, the Prime Minister’s “special adviser on preventing the sexualisation and commercialisation of childhood”, has three demands which she claims will save the world from the horrors of porn. First, that internet service providers and other internet companies block child pornography at its source; second, that any sort of simulated rape pornography is banned; and third, that pornography is banned from public WiFi.

On the face of it, these all seem like reasonable demands. I mean, if you oppose them, you must be some kind of filth peddler or mad porn obsessive, right? Or you might just be a person who understands how the internet works, and therein lies the problem. Let’s tackle Perry’s demands one by one and explain, patiently, why she is wrong.

Firstly, her request that internet service providers block images of child abuse “at their source”. It sounds perfectly reasonable, doesn’t it? Indeed, it’s so reasonable that they already do, and indeed have been doing since 2007. It’s done through a system called Cleanfeed, which is a rare example of a British state-funded IT project that works like a charm. They way it works is, any time a website is reported as illegal to the police, it’s added to a list. Any sites on that list are inaccessible from British ISPs. It’s a very secure system, and very hard to work around – it works so well that we’ve exported it to Canada and Australia.

Perry also wants Google to “do more” to block child porn. As I’ve said before on these pages, Google (and other large search providers), already have enormous departments devoted to blocking it, with thousands of employees checking YouTube for offensive images. On top of that, very little of the material that so offends Perry is available though a simple Google search; most of the illegal stuff is hidden in Internet Relay Chat file servers or on the dark web, accessible only via anonymising browsers like Tor.

Update: At Techdirt, Tim Cushing addresses the common claim by grandstanding politicians that child pornography is easy to “stumble upon”:

How hard would it be to access child porn if you weren’t looking for it specifically? The Ministry of Truth puts your odds at 1 in 2.6 million searches. (MoT points out the odds will fluctuate depending on search terms used, but for the most part, it’s not the sort of thing someone unwittingly stumbles upon.)

All those demanding Google do more to block child porn fail to realize there’s not much more it can do. The UK already has an underlying blocking system filtering out illegal images at the ISP level, and Google itself runs its own blocker as well.

The above calculations should put the child porn “epidemic” in perspective. As far as the web that Google actively “controls,” it’s doing about as much as it can to keep child porn and internet users separated. There are millions of pages Google can’t or doesn’t index and those actively looking for this material will still be able to find it. Google (and most other “internet companies”) can’t really do more than they’re already doing already. But every time a child pornography-related, high profile crime hits the courtroom (either in the UK or the US), the politicians instantly begin pointing fingers at ISPs and search engines, claiming they’re not doing “enough” to clean up the internet, something that explicitly isn’t in their job description. And yet, they do more in an attempt to satiate the ignorant hunger of opportunistic legislators.

If Google is “the face of the internet” as so many finger pointers claim, than the “internet” it “patrols” is well over 99% free of illegal images, according to a respected watchdog group. But accepting that fact means appearing unwilling to “do something,” an unacceptable option for most politicians.

Addressing India’s rape problem

Filed under: India, Law, Liberty — Tags: , , , , — Nicholas @ 00:01

In Reason, Shikha Dalmia looks at the reality of life in India for far too many women:

… the Indian government has been following the feminist script for nearly half a century with little effect. It would serve the cause of gender equity far better if it simply did its job and provided safe streets, timely justice, and other basic public goods for everyone. The absence of such amenities that are taken for granted in the West is arguably the strongest pillar of patriarchy in India.

India’s official rape statistics — which registered 1.8 rapes per 100,000 people in 2010, compared with the United States’ 27.3 — might suggest that India has no rape problem. But everyone knows that rape is vastly underreported in traditional cultures where women fear stigmatizing themselves and dishonoring their families, especially since the chances of justice are remote. Whatever the correct statistics, they can’t capture a crucial qualitative difference in the rape problem between India and in, say, America.

Setting aside incest and sexual assault by friends and relatives that unfortunately happens in all cultures, in America, a lot of rape is “date rape” that occurs when women exercise their social and sexual freedom. The police rarely have an opportunity to intervene in such situations and the only way of combating this problem is by addressing male attitudes. By contrast, in India far more rapes originate in public settings — parks, streets, and buses — as women go about their daily business. This is eminently preventable, which is why, unlike in America, every new episode triggers fresh protests in India.

The very lack of public safety that allows rape also strengthens patriarchy. For starters, it limits women’s employment options. It is too dangerous for them to take jobs that require evening shifts or long commutes. Some companies offer rides home to women who work late, but this makes women more expensive to hire. Single rural women rarely move to cities, where the bulk of job growth is occurring, as men can. All of this undermines women’s ability to maximize their earning potential and gain financial independence.

Above all, it forces women to rely on their patriarchal families for protection, opening them up to all kinds of restrictions. A woman who has to wait for her father or brother to pick her up from college or work — rather than taking a cab or a bus — can’t just meet whomever she wants, wherever she wants, whenever she wants. Everything she does becomes subject to time, place, and manner restrictions by her family and its moral code.

[. . .]

Feminism will never get rid of patriarchy without first getting rid of the need for it. Patriarchy’s staying power stems not just from backward belief systems but a gritty ground reality. The lack of basic law-and-order means that women have to rely on male physical strength for security making men socially more valuable and more dangerous. This makes men, as feminists point out, both protectors and rapists. Electing female politicians and demanding more gender equality won’t cut this Gordian knot—only good governance that promotes public safety for all will.

June 18, 2013

Radley Balko’s new book

Filed under: Books, Law, Liberty, Media, USA — Tags: , , — Nicholas @ 11:17

I’m a fan of Radley Balko’s work (I quote him and hat-tip him a fair bit), so I’m looking forward to reading his new book, Rise of the Warrior Cop, The Militarization of America’s Police Forces. Here’s a glowing review from Scott Greenfield:

The book, published by Public Affairs and scheduled for release on July 9, 2013, starts at the beginning, taking us from the days when Americans policed themselves to the birth of the occupation of policing. While I was well aware of Radley’s persistence and acumen at chronicling current events, I never realized what a thorough researching her is. The history of policing is remarkably impressive.

It’s critical to appreciate the history of policing, to understand that what we now see as normal and inescapable wasn’t always the case. For most of our history, this country did not have a group of people with shields and guns who wandered the streets ordering people about. The fall from grace, If you perceive it as I do, came fast and hard.

American attitudes toward police were built on images of Andy Griffith, strolling the streets of Mayberry to save random cats and, an allusion Radley employs, serving as guest umpire in the occasional baseball game. Good. Honest, One of us. This was the police officer upon whom we relied, and the one we pictured as we told our children that they were here to help us; they were our friend.

Starting in the 1960’s, Radley takes us decade by decades down the road to perdition. As he wears his libertarian politics on his sleeve, it came as no surprise that he gave the politics of law enforcement special scrutiny. His hatred of Richard Nixon for manipulating the silent majority’s hatred of hippies and counterculture into the War on Drugs is palpable. On the other hand, there is no reluctance to blame Bill Clinton for his deceitful abuse of the COPS program, and its infusion of billions into the drug war a few decades later.

Radley is not only a surprisingly good story teller, generally low key in recounting tales of individual harm interspersed with broad influences that gave rise to putting heavy weaponry into the hands of children. There are times when the narrative gets a bit breathless, trying hard to capture the confluence of political deceit on the part of some and ignorance on the part of others. Then again, the alternative would be to simply call out the liars and morons for their contribution to a state of affairs that served to put a naïve American public at grave risk for such puny and transitory purposes as winning an election.

A brief history of Habeas Corpus

Filed under: History, Law, Liberty, USA — Tags: , , , , — Nicholas @ 10:09

In Reason, Jonathan Hafetz reviews a new book by Anthony Gregory called The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror:

This tension between the ideal and the reality of habeas corpus is central to Anthony Gregory’s excellent new book, The Power of Habeas Corpus in America. Gregory, a research fellow at the Independent Institute, provides a valuable contribution to the literature on habeas corpus, one with broader implications for civil liberties, state power, and justice in a liberal democracy. The book does not attempt to capture all of the complex doctrinal shifts in habeas over the centuries. Instead, it synthesizes these developments to underscore a paradox: the way habeas serves as “both as an engine and a curb on state power.” In the process, Gregory charts how power dynamics have historically shaped struggles over habeas and its role in American society.

Gregory situates this paradox early in habeas‘ history. During the 15th and 16th centuries, habeas served mainly as a mechanism for England’s central courts to assert control over ecclesiastical courts and other rival tribunals. By demanding that reason be given why any of the king’s subjects was imprisoned, habeas helped increase the crown’s authority and legitimacy.

By the late 17th century, on the other hand, habeas had become a means of challenging royal authority itself, eventually taking on its modern incarnation as the Great Writ of Liberty. Yet even here, the story is more complex. Building on the pioneering work of historian Paul Halliday, Gregory points out that, contrary to popular interpretations, habeas‘ potential as a judicial constraint on state power was threatened by legislation. Gregory notes, for instance, how the famous Habeas Corpus Act of 1679, labeled by William Blackstone as a “second Magna Carta and stable bulwark of our liberties,” ultimately diluted the writ’s potency and flexibility by tying it down to statute. Increasingly, habeas‘ efficacy would be seen to depend on legislative action — an understanding perhaps best illustrated by U.S. Supreme Court Chief Justice John Marshall’s statement that a federal court’s power to award the writ “must be given by written law.”

[. . .]

The contradictions within habeas were manifested during antebellum America, where the writ was used both to bolster slavery and to undermine it. Slave owners employed habeas to apprehend runaways — for example, by petitioning state courts in the North to assist in apprehending their “property.” Other state courts in the North, by contrast, sometimes used habeas to free slaves or block their return to the South. Ultimately, the ability of state courts to wield habeas in defense of individual liberty was limited by Supreme Court rulings barring state interference with the enforcement of federal fugitive slave laws and, eventually, with federal detentions generally — an example of what Gregory describes as the dangers of centralization.

A significant counter to Gregory’s thesis is the role federal habeas corpus played during the 20th century in helping enforce civil rights in the South and in advancing the criminal procedure revolution undertaken by the Supreme Court to protect the rights of defendants. Gregory’s account here runs against the traditional narrative in which habeas‘ centralization was critical to its continuing role in protecting liberty. In response, Gregory cites the declining utility of federal habeas corpus following several decades of Supreme Court decisions and congressional restrictions that have made it more difficult for prisoners not merely to obtain relief but even to have their claims heard by a judge. Federal habeas, Gregory writes, has become a “shell of what it promised to be.”

June 15, 2013

Moral panic of the month – sex trafficking

Filed under: Europe, Law — Tags: , , , , , — Nicholas @ 10:18

In Forbes, Tim Worstall explains why so many stories about sex workers being smuggled across borders and forced to work as prostitutes may be based on imaginary numbers:

The full paper is here. And I’m afraid that it’s a horrible mess. And not just because they rather gloss over the two meanings of “trafficking” that are used in the debate.

Those two meanings are as follows:

1) The transport of unwilling people (usually women, but of course can at times be either men or children) into forced prostitution. This is of course illegal everywhere: it’s repeated rape just as a very start. It is also vile and we should indeed be doing everything possible to stamp it out.

2) The illegal movement of willing people across borders to enter the sex trade. Strange as it may seem there really are people who desire to be prostitutes. People would, other things being equal, similarly like to be in a country where they get a lot of money for their trade rather than very little. Given these two we wouldn’t be surprised if people from poorer countries, who wish to be in the sex trade, will move from those poorer countries to richer countries. And such is the system of immigration laws that many of them will be unable to do this legally: just as with so many who wish to enter other trades and professions in the rich world. You can make your own mind up about the morality of this but it is obviously entirely different from definition 1).

There is a third possible meaning which is used by some campaigners which is any foreigner at all who is a sex worker. This is obviously a ridiculous one: especially in the EU given the free movement of labour.

We might paraphrase the two definitions as the “sex slavery” definition and the “illegal immigrant” one. I would certainly argue that the first one is a moral crime crying out to the very heavens for vengeance while the second leaves me with no more than a heartfelt “Meh”.

He also links to a Guardian story about a sex trafficking investigation in Britain from a few years ago called Operation Pentameter:

The UK’s biggest ever investigation of sex trafficking failed to find a single person who had forced anybody into prostitution in spite of hundreds of raids on sex workers in a six-month campaign by government departments, specialist agencies and every police force in the country.

The failure has been disclosed by a Guardian investigation which also suggests that the scale of and nature of sex trafficking into the UK has been exaggerated by politicians and media.

Current and former ministers have claimed that thousands of women have been imported into the UK and forced to work as sex slaves, but most of these statements were either based on distortions of quoted sources or fabrications without any source at all.

We could simply assume that there’s something wildly different about the UK. Something that means that there are, to a reasonable approximation, zero sex slaves in the UK while 30% or more of sex workers in Denmark, Sweden and Germany are all sex slaves. This isn’t an argument that’s likely to pass the smell test to be honest. The explanation is instead that the two different meanings of “trafficked” are being used here.

June 14, 2013

QotD: Tax avoidance

Filed under: Business, Law, Quotations — Tags: , — Nicholas @ 09:08

The claim that tax avoidance is immoral is an attack on the very notion of private property. It is, as it were, to say that all money belongs to society collectively, and “we” have an intention as to how much you get to use yourself and how much goes to the state, and if you avoid tax you end up using more of society’s collective money than it intended for you to use. Tax avoidance then becomes a kind of theft. But if my property is fundamentally mine, a tax is an impost, a legal requirement for me to surrender some of my property. Provided I do that, I have behaved perfectly properly. If the overall consequence is that I do not pay what would be regarded as a fair tax contribution, either tax law should be modified, or I could be persuaded that I had a moral duty to make an additional free-will tax contribution.

Andrew Lilico, “Companies have a moral duty to pay no more tax than legally required”, The Telegraph, 2013-06-14

June 13, 2013

Twitter and #EthicalCleansing

Filed under: Britain, Law, Liberty, Media — Tags: , , , , — Nicholas @ 10:02

In sp!ked, Mick Hume talks about the dangers to free speech on Twitter:

The latest bizarre episode in this campaign of ‘ethical cleansing’ on the web occurred at the end of last week, when a 21-year-old London student was sentenced to 250 hours of community service as punishment for a 16-word tweet, having been found guilty of sending a malicious electronic message at an earlier hearing.

Like several other recent Twitter incidents, the case began after the murder of Drummer Lee Rigby in Woolwich on 22 May. As a natural home of rumour, gossip and ill-informed opinion, Twitter was soon ablaze with comments about the killing, including rumours that Drummer Rigby had been decapitated in the street. Deyka Ayan Hassan, a 21-year old English and politics undergraduate from north London, quickly joined in the Twitter-fest with what she intended to be a fashion joke about Lee Rigby’s outfit: ‘To be honest, if you wear a Help for Heroes t-shirt you deserve to be beheaded.’ Hassan’s lawyer told the court that this was the sort of remark she would typically make ‘about clothes and shoes she didn’t like’ (which sounds believable enough to anybody familiar with the level of online ‘banter’). Hassan also insists that at the time of tweeting, she did not know that the dead man was a soldier or that Islamic extremists were accused of his murder.

Perhaps unsurprisingly, Hassan’s joke about the t-shirt did not meet with universal approval online. She was soon inundated with hundreds of hate tweets, threatening her with everything from rape to being burned alive in her home. The naive and shocked student then went to a local police station to report these threats and insults. Rather than listen to her complaints, the police arrested Hassan for sending the original tweet. She was then fast-tracked into court, as if this was an urgent case, and pleaded guilty.

Bad taste in humour and a bad sense of timing should not be criminal offences, and the authorities talk about this as though incidents like this don’t actually happen:

Cases such as this demonstrate how the creeping culture of You Can’t Say That is now spreading across the supposedly free fringes of the internet. As other incidents listed below show, it can now be deemed a crime to post accusations, insults or just ‘naughty’ words that tweeters, the police and the courts consider ‘inappropriate’, ‘offensive’ or ‘insensitive’. And we thought that Thought Crime belonged in the realm of fiction.

The Hassan case should also be a warning to those many users of social-media sites who now see it as their role to police what others say online – and to inform the real police about tweets and posts they find offensive. The police are happy to act on such information, since they far prefer pursuing thought criminals across their tweets to chasing real ones on the streets. But as Deyka Ayan Hassan’s experience shows, the law is no respecter of anybody’s freedom of expression. She thought she was reporting a crime, and ended up with a criminal record. Those who try to live by the ‘hate speech’ laws can perish by them, too.

[. . .]

The culture of You Can’t Say That is making seemingly unstoppable progress across society, even while apparently oblivious civil libertarians rage against the spectre of state surveillance. Last September, no less a figure than the UK Director of Public Prosecutions himself announced that ‘offensive comments made on Twitter are unlikely to lead to criminal charges unless they include threats or turn into campaigns of harassment’. In what was billed as ‘an important statement about the boundaries of free speech’, Keir Starmer reportedly ‘suggested that prosecutions would not be brought over one-off jokes made online, even if in they were in poor taste’. Tell that to such examplars of one-off poor taste jokes as Deyka Ayan Hassan and some of the other characters listed below.

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