Plus Ça Change

Slate's blog on legal issues.
May 15 2008 10:34 AM

Plus Ça Change

Phil,

The French trial also fails the Bazelon/Lithwick/ Heller standard, which I would rephrase as follows. If the government takes an action on the basis of secret evidence and the publicly visible outcome serves the government's interest (e.g., conviction), then we should infer that government officials acted wrongly. If the outcome does not serve the government's interest (e.g., acquittal), then we should infer that government officials acted properly. Applying this standard to the French trial, clearly French officials acted wrongly, so the French government shouldn't get any points. I can say this with full confidence without knowing anything about what actually happened in the French trial, which is why the Bazelon/Lithwick standard is so appealing in the first place.

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I assume you would apply the Bazelon/Lithwick standard to military trials only and not civilian trials (or perhaps courts martial), but I don't think there is any reasonable basis for such a distinction. It's all the same government, after all.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.