Saturday, April 27, 2013


Here's another example showing that no matter what you do as president, you are always wrong. Namely, the flap over the questioning of Boston Marathon bombing suspect Dzhokhar Tsarnaev. Some liberals are criticizing the administration for delaying 16 hours before advising Tsarnaev of his right to remain silent, allowing the FBI to question him extensively. (Legally speaking, the Justice Department was relying on the public safety exception to the Miranda rule in delaying in advising the suspect of his rights.)  Conservatives are angry that Tsarnaev was advised of his rights at all, and are calling for the administration to strip this suspect of any constitutional rights he has and try him as an enemy combatant in a military tribunal (even though civilian courts seem to have as good or better a record of dispensing justice to terrorism suspects than military courts).

Let's remember that the rule in Miranda is mainly a rule of evidence. What the Supreme Court held in Miranda was that if the police fail to advise a suspect entitled to such treatment of his right to remain silent and his right to counsel, prosecutors may not introduce any subsequent statements by that suspect into evidence. It's a way of enforcing the Fifth Amendment guarantee against self-incrimination. In practice, the rule serves as a powerful reminder of constitutional rights that every criminal suspect already has, whether he is advised of those rights or not.  But it's not a magic wand that makes suspects stop talking, even thought that appears to have happened in this particular case. In many cases, criminal suspects refuse to talk to the police even before they have been advised of their rights. In many other cases, criminal suspects continue making self-incriminating statements even after they have been told that they have the right to remain silent. In this case, it doesn't seem particularly important to obtaining the conviction of this individual that the prosecutor have the ability to introduce his own statements. There is an abundance of physical evidence that will likely suffice to convict him.

So what is the importance of the timing of reading Tsarvaev his rights? It's an opportunity to score political points, of course. Those who want to fault the Obama administration for continued harsh treatment of detainees have been quick to criticize the 16 hour delay. And those who are trying to make the case that the Obama administration is in league with the terrorists will be satisfied with nothing less than stripping this citizen of all of his constitutional rights, and handing him to a lynch mob, or a torture chamber, or at least to a military tribunal.

Wouldn't it be nice if there were a few more people willing to cut the FBI and Justice Department some slack? What about recognizing the hard and efficient work of these trained investigators who cornered these suspects in seemingly record time? Dare I suggest that they struck the balance just right, between recognizing the constitutional rights of a criminal suspect, and protecting the public from potential danger?

Tuesday, April 23, 2013


Richie Havens (January 21, 1941 – April 22, 2013)

Wednesday, April 17, 2013

Senate fail


This is eight year old Martin Richard, who has achieved immortality as an international symbol of peace. Martin was killed on Monday for being in the wrong place at the wrong time. His mother also suffered a brain injury and his sister lost her leg, when a bomb exploded near to where the family was standing while they were watching the finish of the Boston Marathon.

Sunday, April 14, 2013

Weekly address

Tuesday, April 9, 2013

Budget Negotiations

Sometimes in negotiations you have an unreasonable client, who refuses to give any ground to the other side on a particular point, somehow failing to understand that it is impossible to make a deal without conceding something to your opponent. Sometimes you have an unreasonable adversary, who seems uninterested in making a deal except on their own terms. And sometimes you have both. That seems to describe the position of President Obama in current budget negotiations.

The president is facing outrage from his fair weather supporters on the left for suggesting that he is open to changing benefit formulas for Social Security as part of a budget deal with Congressional Republicans. The concept of "chained CPI," and other changes to entitlement formulas, is something Republicans have been demanding as part of the budget negotiations for months. Republicans promised that if the president was willing to make some concessions on entitlements, they would show interest in additional revenue increases. So it should be clear from the history of these budget negotiations that chained CPI was not the president's idea. It's probably not his preferred method of fixing Social Security. This administration, which pushed through a Social Security payroll tax holiday for the last couple of years, evidently doesn't even consider it very urgent to shore up Social Security at all right now. But they are willing to consider such a proposal from the other side in the interest of getting a budget deal. Those expressing outrage on the left are somehow failing to grasp this elementary principle of negotiation strategy.

And what about that unreasonable adversary I mentioned at the top? Now that the president has expressed willingness to consider agreeing to something that the other side has been demanding, something they told the president was one of their top priorities, the Republicans have moved the goalposts. Here is John Boehner's response to President Obama's budget proposals: "If the president believes these modest entitlement savings are needed to help shore up these programs, there's no reason they should be held hostage for more tax hikes." This statement might be smart politics, but Boehner knows it is disingenuous in the extreme. The president doesn't believe these savings are needed. That is something YOU have been demanding, Mr. Boehner. To suggest otherwise is the kind of bad faith negotiating tactic that kills deals.

So now we have the left and right both ganging up on the president for trying to make a budget deal. The left plays into Speaker Boehner's hands by perceiving chained CPI as President Obama's idea. And the right seems ready to play the same trick they played with Medicare in both the 2010 and 2012 election campaigns, trying to blame the Democrats for taking people's benefits away, when that was their demand in the first place.

What will protect the president, and perhaps allow a deal to be made, is the American people. The president's popularity remains strong, especially compared to the standing of Congress. People generally favor the balanced package of spending cuts and revenue increases the administration is suggesting. A bit of public pressure to stop fooling around might help get a deal done. Once the irrational actors on all sides are done scoring political points and blaming one another for failing to make a deal, one hopes that enough rational actors will be left in the room to identify the common interests that will permit us to move forward.

Sunday, April 7, 2013

Peace talk

The ABA Dispute Resolution spring conference this week invited former Senator George Mitchell to talk about his five year effort to mediate a peace agreement in Northern Ireland. When the agreement was finally signed in 1998, Mitchell knew the work of making peace was not over, that implementation of the agreement was going to be even more difficult than the long effort to obtain the agreement, and that it would take some time before violence died down. He told people in Ireland at the time that although he knew they still had a lot of difficult days ahead, he hoped someday to return to Northern Ireland with his son, born only about six months before the Good Friday agreement, and sit in the visitors' gallery of the Northern Ireland Assembly, where there would no longer be talk of violence, and no talk of peace either. Neither would be worth mentioning, as peace would be taken for granted.

Mitchell finally got the chance to take that trip with his son. (Some google research revealed that a documentary about this trip is going to be released this month.) Michell told our audience that after traveling a few days through the Northern Ireland countryside he had grown to love, he took his son to watch the debate in the Northern Ireland Assembly, where they sat and listened for about 45 minutes to a "dry as dust" presentation of a report from the European Parliament in Brussels. Finally, Mitchell's son turned to his father and begged to leave, complaining that the proceedings were really boring. Boring to his son maybe, but to Mitchell the mundane speeches in the Assembly were music to his ears.

Mitchell explained that the most important traits needed to reach a peace agreement are patience and perseverance. He also emphasized the importance of holding out hope and economic opportunity, otherwise people without those essentials are likely to continue to engage in violence. Since the end result of this process is so boring, however, that probably explains why the peace process does not excite most of us--it explains why they make a lot of war movies, and not very many peace movies. Only dogged peacemakers like Mitchell get excited by the deadly dull reports of an uneventful legislative session in a more peaceful Northern Ireland.

Of course someone asked about the prospects for peace between Israel and the Palestinians, and even though Mitchell has taken leave of that project, he is still optimistic about the prospects of reaching a peace agreement. It's not going to be easy, but Mitchell thinks it will happen. That is because the interests of both parties are more clearly served by a two state solution than by continued conflict, and also because the dangers of continued conflict are so great. Those dangers include rockets; they include increasing instability in the region; and they include demographic changes in Gaza and the West Bank. The question is whether the parties will be able to overcome the political risks of making peace to come to an agreement that better serves their interests. 

Tuesday, April 2, 2013