Law

A rather important political development in Italy. Marco Mancini, the second-in-command of SISMI, the Italian intelligence agency has been “arrested”:http://www.repubblica.it/2006/07/sezioni/cronaca/arrestato-mancini/arrestato-mancini/arrestato-mancini.html, along with his former boss, General Gustavo Pignero, for his part in the extraordinary rendition/kidnapping of Abu Omar. The “NYT”:http://www.nytimes.com/2006/07/05/world/europe/05cnd-italy.html?hp&ex=1152158400&en=4d148c71cfab4a33&ei=5094&partner=homepage also has a piece on this, but its focus is on the magistrates’ decisions to issue arrest warrants for four Americans who were allegedly involved. It seems to me that the SISMI part of the story is the more important one. There’s no prospect that the US is going to comply with warrants issued against its agents, but there is a real possibility of substantial political repercussions from the SISMI arrests.

The path to justice in Italy is a long and tortuous one – arrest by magistrates is no guarantee of successful prosecution. But the arrest of a key figure in the Italian intelligence agency suggests that the unwritten rules of Italian politics are changing. SISMI has traditionally been a law unto itself, with many connections to shady right wing groups in Italian politics, and an unstated presumption of judicial immunity. This may not be true any longer. The Italian government has issued a statement which is a quite perfect example of the art of flowery Italian political rhetoric – effusive and entirely meaningless expressions of confidence in the loyalty of the Italian intelligence apparatus to the state, which strongly suggest to me that some of the principals of aforementioned intelligence apparatus are being measured for the chopping block. Readers of “Laura Rozen”:http://warandpiece.com/ and “Josh Marshall”:http://www.talkingpointsmemo.com/ will remember that there are many interesting things that Mancini’s boss, Nicolo Pollari, could reveal about Nigerien uranium and forged documents should he choose to. It’s still unlikely that he’ll be forced to make that choice, but it’s a little more likely than it was yesterday.

The Supreme Court has found [pdf] that the military commissions set up to try prisoners at Guantánamo Bay are illegal, because Common Article 3 of the Geneva Conventions applies there. This is very important news, and has wider implications than for habeas corpus, according to Marty Lederman:

This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” […] This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

Meanwhile, there is a certain comedy value in the dissenting opinions of Scalia and Alito, which I have attempted to mine here.

Listening to the reports about the Miami “Seas of David” alleged terrorist cell, I couldn’t help returning to the thought: what did these jackasses really think they were doing? The fact that they were seeking to establish contact with Al Qaeda (rather than being part of that organization from the beginning) was one red flag. The rather mixed bag of plans was another. The odd cultish overtones yet another. “Jim Henley’s reading of the indictment”:http://highclearing.com/index.php/archives/2006/06/24/5234 suggests further grounds for suspecting that these guys were less evil terrorist geniuses and more greedy idiots.

Just back from going to hear Tony Blair give “a speech”:http://www.pm.gov.uk/output/Page9737.asp on the criminal justice system. It was the usual stuff about “rebalancing” the system in favour of the victim, with a lot of noise about the need for “fundamental debate” on principles but no actual discussion of said fundamentals. An important rheorical subtext in the speech was Blair-as-outsider, pitted against the “legal and political establishment”, which is a bit much coming from a legal professional from Derry Irvine’s chambers who has been Prime Minister for the past nine years! There was also a heap of cod sociology, reminiscent of “Henry’s post the other day”:https://crookedtimber.org/2006/06/20/speaking-sociology-in-clear/ , about how we once lived in nice cosy communities but that this stable order has been swept away by globalisation to be replaced by anomie etc. Blair spoke as if he intends to go on and on, which will be bad news for Gordon Brown if true (but maybe PMs always talk like this).

There was an uncomfortable amount of attention to immigration and asylum seeking in the speech, including this:

bq. Here is the point. Each time someone is the victim of ASB, of drug related crime; each time an illegal immigrant enters the country or a perpetrator of organised fraud or crime walks free, someone else’s liberties are contravened, often directly, sometimes as part of wider society.

I’m quite puzzled by why Blair thinks that the mere entry of an illegal immigrant amounts to a contravention of someone’s liberty.

My last Plato bleg was a success, so I’m going to try another. Everyone has read Euthyphro, so you remember that the dad allegedly killed the guy who allegedly killed the other guy. And so Euthyphro is prosecuting him for murder. And so here we are, on the steps of the King Archon’s court. Fair enough. But it happened on Naxos. So why is it being tried in Athens? Obviously Euthyphro and his dad are Athenian citizens who happen to own land on Naxos. I can see various possibilities. If it happened at the height of Athenian imperial power – say, at the time that Naxos attempted to withdraw from the Delian league and got stomped for it by the Athenians – I would presume the Athenians had at some point asserted extraterritorial legal jurisidiction at least in cases involving its citizens. But the trial of Socrates happens in 399 BC, a few years after the restoration of democracy. Athens is hardly the empire it was. So why does its court have extraterritorial authority in cases concerning people who die of exposure in ditches on Naxos? (If you commenters know the answer, I will be impressed.)

“As usual”:http://www.slate.com/id/2139458/, “Radley”:http://www.theagitator.com/archives/026693.php#026693 “Balko”:http://www.cato.org/new/pressrelease.php?id=34 is the man “to consult”:http://www.theagitator.com/archives/026686.php#026686 on the “Hudson vs Michigan”:http://www.supremecourtus.gov/opinions/05pdf/04-1360.pdf case, which concerns the constitutionality of no-knock police raids. (Balko is even cited on p.10 of “Breyer’s dissent”:http://www.law.cornell.edu/supct/pdf/04-1360P.ZD.) Today’s decision basically says evidence obtained from no-knock raids is admissible in court. The broader implication, as Balko says, is that “there is now no effective penalty for police who conduct illegal no-knock raids.” By the by, Scalia, writing for the majority, is happy to set his originalism aside and argue that the growth of “public-interest law firms and lawyers who specialize in civil-rights grievances … [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline … [and] the increasing use of various forms of citizen review can enhance police accountability” all mean that the fourth amendment can be reinterpreted.

Wil Shipley, who writes the excellent “Delicious Monster”:https://crookedtimber.org/2004/11/13/delicious-monster/ (BibTeX export and nice integration with “LibraryThing”:http://www.librarything.com/ in the next version, please please please) had his identity stolen recently. The story is the by-now standard one of “frustration and anger”:http://wilshipley.com/blog/2006/05/etheft-etrade.html, and is as yet unresolved. As Kevin Drum “has been saying”:http://www.washingtonmonthly.com/features/2005/0512.drum.html for some time, the law in this area is basically broken: the companies need to be responsible for fradulent accounts, just as banks and not customers are responsible if money gets robbed from the local branch’s safe.

Wil’s case is typical. He’s absorbing all the costs of getting his money back out of a frozen E-Trade account, because E-Trade could care less and has no incentive to bother helping him out. Until the law is changed, of course, Wil still has to deal with this himself. One of his commenters makes the following interesting suggestion about dealing with the company over the phone:

bq. Even more important, never hang up. Most call center personel are expressly forbidden from hanging up on you. Simply stay on the line until they think of a new solution.

Sounds plausible. My brother runs a call center that handles the North American traffic for a financial services company. I’ll have to ask him whether this is true. Howie Becker tells a similar story about dealing with recalcitrant call center staff. He had learned from a relative that, at his airline, difficult-to-manage customers were labeled “irates.” First the representative would try to fix the problem, but if the caller persisted they would get bumped up to a supervisor. The representative would tell the supervisor, “I have an irate here”, short for “irate customer.” Becker decides he might as well cut straight to the supervisor, so he calls the airline and says “Hi, I’m Howie Becker and I am an irate. Can you help me with this ticket?” The representative sputters, “How did you know that word?!”

The NSA “has assembled”:http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm a gigantic database of telephone calls in the United States, with the help of all of the major telecommunications providers (except Qwest). The database is not of voice recordings, but of calls made. It constitutes data on a huge network of ties between people who call each other. In recent years, sociology and related fields have seen a lot of development in dynamic modeling of social networks, and in fast algorithms for analyzing large, sparse graphs. Entities with this kind of structure include things like the Internet, or AOL’s instant messenger network, and the universe of telephone calls within the United States. Some of the papers in “this edited volume”:http://darwin.nap.edu/books/0309089522/html/, published by the National Academy of Science, give a sense of what people are doing. (The volume was co-edited by my colleague “Ron Breiger”:http://www.u.arizona.edu/~breiger/.) For instance, you can read about “Data Mining on Large Graphs”:http://darwin.nap.edu/books/0309089522/html/265.html, “Identifying International Networks”:http://darwin.nap.edu/books/0309089522/html/345.html, the “Key Player Problem”:http://darwin.nap.edu/openbook/0309089522/html/241.html, and the use of “MTML models to study adversarial networks.”:http://darwin.nap.edu/books/0309089522/html/324.html I think it’s fair to say that techniques of this sort are of significant interest to the intelligence community.

Social scientists, in the normal course of things, are severely limited in the amount of good data they can collect on networks of this sort. The “Internet Movie Database”:http://www.imdb.com has proved a very useful source of data for developing theory and methods in this area because it’s comprehensive and publicly available. Other researchers have set out to collect very large datasets describing some network structure together with the attributes of the people in it. A recent paper by “by Gueorgi Kossinets and Duncan Watts”:http://www.sciencemag.org/cgi/content/abstract/311/5757/88, for example, analyzes all the emails sent over the course of a year by 43,000 students, faculty and staff at a large private university. But the traffic analyzed in that paper is just a drop in the ocean of the real flow of communication that travels by voice and email every day.

Social network analysts — in fact, any social scientist who works with quantitative data — often dream of ideal datasets. The kind of thing we would collect if money, time and ethics did not constrain us. When we daydream like this, our thoughts tend toward harmless megalomania: maximally comprehensive data on the whole population of interest, in real-time, with vast computing power to analyze it, and no constraints on updating or extending it. “And a pony”:http://examinedlife.typepad.com/johnbelle/2004/03/if_wishes_were_.html, too. At the limit, something like “Borges’ map”:https://notes.utk.edu/bio/greenberg.nsf/0/f2d03252295e0d0585256e120009adab?OpenDocument is what we want, a perfect, one-to-one scale representation of the world.

Scientists and spies are not so different. The intelligence community’s drive to find the truth, to uncover the real structure of things, is similar to what motivates natural or social scientists. For that reason, I can easily understand why the people at the NSA would have been drawn to build a database like the one they have assembled. The little megalomaniac that lives inside any data-collecting scientist (“More detail! More variables! More coverage!”) thrills at the thought of what you could do with a database like that. Think of the possiblities! What’s frightening is that the NSA is much less constrained than the rest of us by money, or resources, or — it seems — the law. To them, Borges’ map must seem less like a daydream and more like a design challenge. In Kossinets and Watts’ study, the population of just one university generated more than 14 million emails. That gives you a sense of how enormous the NSA’s database of call records must be. In the social sciences, Institutional Review Boards set rules about what you can do to people when you’re researching them. Social scientists often grumble about IRBs and their stupid regulations, but they exist for a good reason. To be blunt, scientists are happy to do just about anything in the pursuit of better knowledge, unless there are rules that say otherwise. The same is true of the government, and the people it employs to spy on our behalf. They only want to find things out, too. But just as in science, that’s not the only value that matters.

I sympathize with the commenters who affected shock, but I really am quite convinced that Eugene Volokh is a nice, intelligent person whom, if I met him in real life, I would like. This may be based on class solidarity. He is a smarty-pants law professor, and I like smarty-pants law professors. I happen to know two other former Supreme Court clerks living in Southern California who are nominal Republicans (these people also know Prof. Volokh and vouch for his character). Despite being Republicans, they are both nice people, and not just in the “he always seemed like such a nice boy” fashion of the opinion of the serial killer’s elderly neighbor, but the real-life type of nice person. [click to continue…]

Jury decides against execution. Seems like the right decision to me. Opportunist that he is, Moussaoui shouted “America, You Lost!” when being led from the courtroom, which is meaningless but may have its intended effect on those who wanted to see him executed. I’m sure he had an equally snappy alternative ready — perhaps something about martyrdom, or maybe just the same line, come to think of it — in case the decision had gone the other way.

Alex Voorhoeve (LSE) writes to tell me of a proposed law in the Netherlands which would establish a special legal status for young Dutch citizens of Caribbean descent, allowing them to be deported from the Netherlands back to their territory of origin for minor crimes. The people in question are Dutch citizens of as good a legal title as anyone else, but this appears to single them out on the basis of ethnic or racial criteria for treatment that would not be meted out to others. The details are in “this pdf”:http://www.nrc.nl/redactie/binnenland/BobWit.pdf , by a judge on the Caribbean Court of Justice (and formerly a judge in The Netherlands).

Yale University Press has just released Yochai Benkler’s _The Wealth of Networks: How Social Production Transforms Markets and Freedom_. You can buy it at “Powells”:http://www.powells.com/partner/29956/s?kw=Wealth%20of%20Networks%20Benkler, and Amazon, but it’s also available from Benkler under “Creative Commons”:http://www.benkler.org/wealth_of_networks/index.php/Main_Page with an associated wiki. There’ll be more about this book on CT soon – for the moment, suffice to say that I think that this is a really important book, not only for people interested in the politics of technology, but for people interested in left or liberal politics more generally. It fizzes with ideas.

The website “Sign and Sight”:http://www.signandsight.com/ (an English-language version of “Perlentaucher”:http://www.perlentaucher.de/ ) is a year old, and I’ve only just noticed it. There’s lots of excellent stuff there, including “a piece by Friedrich Christian Delius on the state of Italy”:http://www.signandsight.com/features/697.html , which tells us, inter alia, that the World Bank ranked the Italian legal system 135th/136 (just ahead of Guatemala!) for effectiveness:

bq. The main reason is that the limitation period for crimes continues to run after a trial has opened, and even after a verdict has been passed, right up until the final day of the final instance. Consequently lawyers try to prolong legal proceedings as long as possible. In 2004 alone 210,000 cases fell under the statute of limitations. The perfect scenario for well-off defendants to get away scot-free. Berlusconi himself has profited this way several times.

bq. A well-governed state might have an interest in changing this state of affairs, for example by introducing the usual procedure of suspending the statute of limitations when a trial begins. The governing majority has indeed gathered the energy to make changes, but in an unexpectedly creative way. The limitation periods have now been considerably shortened, from fifteen to seven and a half years, specifically for economic crimes and corruption. There will be no more sentences for the top ten thousand criminals, Mafiosi, corrupt politicians.

There’s much much more.

Several good books dealing with the American penal system and its effects on other aspects of American society are slated to appear this year. The first of them has just been published. Locked Out, by “Jeff Manza”:http://www.cas.northwestern.edu/sociology/faculty/manza/home.html and “Chris Uggen”:http://www.soc.umn.edu/~uggen/ examines the consequences of felon disenfranchisement laws for political participation and electoral outcomes. As might be expected, the United States puts much stronger restrictions than most Western countries on the voting rights of those currently imprisoned, on parole or probation, as well as on those who have served their sentences. When coupled with the fact that the U.S. has a relatively enormous segment of its population in prison, such laws may have political effects in themselves, as well as reflecting some of the deep effects of mass incarceration in modern American society. Here’s a map (from “Chris’s website”:http://www.soc.umn.edu/%7Euggen/felon_disenfranchisement.htm) showing felon disenfranchisement laws by state (for 2004). (Click the map for a larger, more readable version.)

In the book, Manza and Uggen find that about 5.3 million people were affected by these laws as of the November 2004 election. Of these, two million were African-American. In several states, as many as one in four black men is ineligible to vote. An “earlier article”:http://www.soc.umn.edu/%7Euggen/Uggen_Manza_ASR_02.pdf by the authors estimate that felon disenfranchisement is large enough to affect national elections when they are close: felons make up about 2.5 percent of the U.S. voting-age population (a steady upward trend from just under one percent in 1976). But there’s not much political hay to be made about this — who wants to say “70 percent of felons vote Democratic”? The racial history of these laws is more important: they are largely the outcome of racial conflict during Reconstruction. Moreover, according to the authors public opinion polls suggest 80 percent of Americans are in favor of allowing convicted felons to vote once they have completed their sentences. (Only a third are in favor of allowing prisoners to vote.)

Chris Uggen also “has a good blog”:http://chrisuggen.blogspot.com/, incidentally. Today, for instance, I “learned from him”:http://chrisuggen.blogspot.com/2006/03/federal-lawsuit-over-financial-aid-for.html that students convicted of rape (for example) remain eligible for federal financial aid, but students convicted of misdemeanor drug possession are automatically ineligible. Anyway, I recommend the book.