TUESDAY, JULY 13, 2010


Profiling’s unlikely


by Gabriel J. Chin and Kevin R. Johnson


state law conflicts with federal law, in- truding on federal power and ability to regulate immigration. For many Amer- icans, however, the lawsuit is needed be- cause of concerns that Arizona’s legisla- tion, S.B. 1070, will lead to police harass- ment of people, particularly those of color, who cannot prove they are in this country legally. Yet for all the controversy over those concerns, few are talking about the real legal issue underlying the law.


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Supporters and opponents of S.B. 1070 assume that racial profiling is unconstitu- tional, largely because many Americans believe that it ought to be. In fact, the U.S. Supreme Court has approved the racial profiling permitted — indeed encouraged —by S.B. 1070. In a 1975 case regarding the Border Pa-


trol’s power to stop vehicles near the U.S.- Mexico border and question the occu- pants about their citizenship and immi- gration status, United States v. Brignoni- Ponce, the high court ruled that the “like- lihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant fac- tor.” In 1982 the Arizona Supreme Court agreed, ruling in State v. Graciano that “enforcement of immigration laws often involves a relevant consideration of eth- nic factors.” Arizona’s immigration law states that a


“law enforcement official or agency . . . may not consider race, color or national origin in implementing the requirements of this subsection except to the extent per- mitted by the United States or Arizona constitution.” Although supporters of the law, including Gov. Jan Brewer (R) and other state officials, have said repeatedly that racial profiling is prohibited in its en- forcement and that those charged with carrying out the law will be trained to avoid it, the fact that the legislature in- cluded this careful exception is signifi- cant. Lawmakers took care to embrace the reliance on race permitted by cases such as Brignoni-Ponce. This choice deserves acknowledgment and discussion, just like that received by the rest of the law. Brignoni-Ponce has resulted in immi-


gration enforcement that many contend is race-based and in violation of the U.S. Constitution. In case after case, in states including Florida, Iowa and New York, defendants arguing that Border Patrol stops constituted unlawful searches and seizures under the Fourth Amendment have encountered claims by the U.S. gov- ernment — including the current admin- istration — that “Mexican” or “Hispanic” appearance, along with other factors, jus- tified an immigration stop. Border en- forcement officers regularly admit in court that “Hispanic appearance” is one reason for an immigration stop. Racial profiling results from the per- ceived statistical association of particular races or nationalities with undocument- ed immigration — the idea, in other words, that many undocumented im- migrants are from Mexico. This rationale ignores the fact that the law generally re- quires individual suspicion to justify criminal investigation; that a “Mexican appearance” is a vague and ambiguous description and that people from Mexico bear an array of appearances. We suspect that Brignoni-Ponce and its incorporation into S.B. 1070 have escaped the notice of many Americans because of the ways in which racial sensibilities have evolved since the 1954 ruling in Brown v. Board of Education. Modern American values and most of modern constitutional law are simply inconsistent with the equation of race and suspicion author- ized and encouraged by Brignoni-Ponce. Today, being subject to questioning by law enforcement for no other reason than that others of your race, religion or na- tional origin are supposed to commit more of a particular type of crime is noth- ing short of un-American. The federal lawsuit raises a number of questions. We think the government’s claim of federal preemption is likely to prevail: There is room for one immigra- tion law, not a 50-state patchwork of im- migration laws. But the discussion should not stop there. Perhaps that is why last Friday the League of United Latin Amer- ican Citizens (LULAC) filed another chal- lenge focusing on S.B. 1070’s potential for racial profiling. For the Arizona officials who enacted S.B. 1070, the next step is to repeal the part of the law that authorizes racial profiling. As for the legal system as a whole: Brignoni-Ponce has been excep- tional and out of the constitutional main- stream since it was decided. The U.S. and Arizona Supreme Courts should recon- sider the endorsement of race-based law enforcement, which is contrary to mod- ern notions of equality in America, and conform constitutional law to the princi- ples held dear by most Americans.


Gabriel J. Chin is a professor at the University of Arizona Rogers College of Law. Kevin R. Johnson is dean and a professor of public interest law and Chicana/o studies at the University of California Davis School of Law.


n its challenge to Arizona’s contro- versial immigration law last week, the Justice Department argues that the


KLMNO EUGENE ROBINSON


enabler A high court ruling underpins Ariz. law


Injustice: The director’s cut F


or Roman Polanski, the long, un- speakable nightmare of being confined to his three-story chalet


in Gstaad, the luxury resort in the Swiss Alps, is finally over. The fugitive direc- tor is free once again to stroll into town, have a nice meal, maybe do a little shop- ping at the local Cartier, Hermes or Louis Vuitton boutiques. Or he could just scurry like a rat into


France or Poland, the two countries where he has citizenship — and where authorities have a long history of acting as if Polanski’s celebrity and talent somehow negate his sexual brutaliza- tion of a 13-year-old girl. I’m betting on the rodent option,


even though Swiss authorities are do- ing their best to convince Polanski that he can relax and enjoy the fondue with- out ever having to answer for his crimes. After all, they did force him to wear an electronic ankle bracelet for several whole months. The horror. The horror. After authorities announced Monday that they were denying the U.S. request to have Polanski extradited, one of the famed auteur’s lawyers called the decision “an enormous satisfaction and a great relief after the pain suffered by Roman Polanski and his family.” That statement should stand as the defini- tive textbook example of unmitigated gall.


Anyone tempted to feel Polanski’s pain should take a closer look at the case. In 1977, when he was 43, Polanski lured a 13-year-old girl to a house in the Hollywood hills owned by Jack Nich- olson — the actor was not home at the time — and plied her with drugs and champagne before having sex with her. Polanski and his lawyers claimed that


the sex was consensual. That’s absurd as a legal argument, since the girl was too young to give her consent. But the girl’s grand jury testimony makes clear that this was anything but a no-fault romp. She testified that Polanski, on the ruse of photographing her and wanting to make her a star, persuaded her to pose nude and then assaulted her. She testified that Polanski raped and sodomized her, against her will, and that she was distraught before, during and after the act. The director was in- dicted on six felony charges, including rape by use of drugs and child mo- lestation, but he was allowed to plead guilty to one count of unlawful sexual intercourse. Polanski, who spent about a month and a half in jail, thought he had a deal that would get him off with nothing worse than 90 days in confine- ment under psychiatric observation.


RICHARD COHEN


Obama’s war and Steele’s truth “F


acts are the enemy of truth,” Don Quixote tweeted so very long ago —and as if to prove his point, the


Democratic Party in all its tawdry glory unloosed a barrage of facts in the direction of the slyly brilliant Michael Steele, chair- man of the Republican National Commit- tee who is almost certain to someday take his place in the conservative cable TV fir- mament. For saying that the war in Af- ghanistan is “a war of Obama’s choosing,” he was, for a brief and shining moment, stating the absolute truth. That moment has passed. Steele has


softened his critique. These uncharacteris- tic second thoughts followed mortifying questions about his inner Republicanness by, among others, Sen. John McCain, Sa- rah Palin’s irritable Geppetto, who created her out of discarded principles and furious opportunism. Steele has his own princi- ples, however, and declared that he is not going to quit. “I ain’t going anywhere,” he said. And he hasn’t.


Of course, Steele was right from the


start. His truth was the larger one, which is that enough time has elapsed so that the war in Afghanistan can be seen as Barack Obama’s. It began, as we all know, under the illustrious George W. Bush, who then got distracted by all those weapons of mass destruction in Iraq and veered off toward Baghdad. But these are mere de- tails, pesky facts with which we need not concern ourselves. The truth is that Oba- ma found this war on his doorstep, took it in, nursed and even escalated it, and swad-


dled it in his own clothes: more troops, and still more on the way. One can appreciate how Steele got his


“facts” wrong. It is how possession of the Vietnam War moved from Lyndon John- son to Richard Nixon even though they both lacked absolute belief in the cause — whatever exactly that once was. Nixon, in fact, even had a secret plan to end the con- flict and was furiously de-escalating, rap- idly Vietnamizationing and frantically try- ing to disentangle himself and the nation from the war. Still, when demonstrators gathered outside the White House, it was not to praise his peace efforts but to de- nounce him as a warmonger. The rule in all these cases seems pretty apparent: Either end the war or own it. As Steele intuited, Obama now reluc- tantly owns the war in Afghanistan. He has embraced it with all the enthusiasm of a father of the bride at a shotgun wedding. The president is no happy warrior — not much of a warrior at all, to be upfront about it — and so his fellow Democrats have resorted to ugly demagoguery to keep kicking the war back to where it be- gan, the administration of the suddenly cherished Bush. To this end, Brad Wood- house, spokesman for the Democratic Na- tional Committee, accused Steele of “bet- ting against our troops and rooting for failure in Afghanistan” — an ugly smear for which my colleague E.J. Dionne Jr. has already administered a well-deserved reprimand.


But the abominable Woodhouse is Ex-


S


A15 ANNE APPLEBAUM


Sarkozy’s cosmetic problem


LAURENT CIPRIANI/ASSOCIATED PRESS Roman Polanski on the balcony of his chalet in Gstaad, Switzerland, in April.


But when the judge had second thoughts about going through with such a lenient deal, Polanski fled. He has been on the lam ever since. Polanski is a great filmmaker, and his


Hollywood friends and supporters have blithely taken the position that his gen- ius outweighs his crimes. Whoopi Gold- berg opined last year that what hap- pened between Polanski and the child “wasn’t rape-rape.” More than 100 movie-business luminaries — including Martin Scorsese, Mike Nichols, Harvey Weinstein and, yes, the inappropriately libidinous Woody Allen — signed a peti- tion asking Swiss authorities to set Po- lanski free. I hope they’re satisfied now that their prayers have been answered. The decision by Switzerland to re- lease the artist from his gilded cage was based on a technicality. The issue was “not about deciding whether he is guilty or not guilty,” Justice Minister Eveline Widmer-Schlumpf said. She’s right; Po- lanski is guilty by his own admission. What the Swiss have decided is that de- spite admitting his crimes and fleeing from U.S. justice, Polanski will never have to be punished. It’s relevant that Polanski has never


shown remorse. He claimed in a 1979 in- terview that he was being hounded be- cause “everyone wants to [have sex with] young girls.” It’s irrelevant that the victim, now a middle-aged woman, has no interest in pursuing the case and reliving a traumatic episode. What mat- ters is what Polanski admitted doing to her 33 years ago — and the fact that Po- lanski decided to run away rather than face the music. Swiss officials noted the obvious: that


Polanski never would have visited Swit- zerland if he had thought he was put- ting himself in legal jeopardy. Since he’s not a legitimate candidate for kidnap- ping and rendition by the CIA, he’s now home free — unless he somehow makes another mistake. He’ll always have to look over his shoulder. That’s punishment of a sort, but not nearly enough. How about this: As long as he steers clear of U.S. justice, why don’t we steer clear of his movies?


The writer will answer questions at 1 p.m. today at www.washingtonpost.


com. His e-mail address is eugenerobinson@ washpost.com.


eyes, in Paris in April. It seemed even more improbable in June, when a gleeful French politician regaled me with more gory details. But sometime last week, when this story — now a full-blown French political scandal, involving cash bribes, a rich widow and a double- crossing butler — suddenly threatened to engulf the president of France, I de- cided to focus harder. Dutifully, I sat down Monday night to listen to Nicholas Sarkozy, who appeared on television to explain. And the result? I still don’t really know what happened. Here are as many of the facts as I can squeeze into a column of reasonable length: The figure at the heart of the story is Liliane Bettencourt, an 87-year- old society beauty, heir to the L’Oreal for- tune and the richest woman in France. About three years ago, Liliane’s daugh- ter, Francoise, sued her mother, who had bequeathed some of that wealth to a “friend,” Francois-Marie Banier, a 63- year-old society photographer. Among other things, Liliane gave Banier paint- ings — Picasso, Matisse — cash and an is- land in the Seychelles. Francoise alleged that her mother was senile. Liliane de- clared that her daughter was dull, un- attractive and jealous. That alone would have kept the


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French entertained for the summer. But during the course of the lawsuit, Liliane sacked some of her domestic staff, ap- parently because they sided with Fran- coise. This was a mistake. The butler, it turned out, had been taping her conversations for weeks, us- ing a tiny recorder hidden on his cocktail tray. After he lost his job, he gave the re- cordings — more than two dozen CDs’ worth — to Francoise, who gave them to


L’affaire Bettencourt has seriously damaged France’s president, whether he is guilty or not.


hibit A in what, looking back, will be seen as the overselling of this particular war. The very mention of the troops, as with the invocation of the hallowed word “fan” by the con artists of professional sports, is evidence that something awful is afoot. A war that is self-evidently right, that is un- questionably worth the lives of Americans, does not have to be hyped or defended in such a squalid fashion. There was even a bit of hype in the testimony of Gen. David Petraeus in his recent star turn before the Senate Armed Services Committee. After stating that al-Qaeda had retreated to the “tribal areas of Pakistan,” he explained that we nonetheless have to keep fighting in Afghanistan where, to paraphrase the general, al-Qaeda ain’t. His testimony did not parse. The reality is that we fight be- cause we have been fighting. Steele has since moved on. He had in- truded truth into partisan babble — not merely a sin but a truly bad career move. Only one GOP chairman has gone on to the White House and that was George H.W. Bush, a multiplex of a public servant (president, vice president, congressman, CIA director). Times have changed, though; the media crave their fix of quotes from almost anyone, and Steele is glad to oblige. For an entire news cycle he had Af- ghanistan just right and then, castigated by faded facts, he backed down. A glorious career as a conservative yakker was on the line. He was right on Afghanistan, but he would rather be rich.


cohenr@washpost.com


THE PLUM LINE Excerpts from Greg Sargent’s blog on domestic politics and debate on the Hill: voices.washingtonpost.com/plum-line


Firing up Democrats


for November White House press secretary Robert Gibbs dropped a political bomb over the weekend, saying that Republicans just may take back the House. His comments are be- ing widely interpreted as an urgent warn- ing designed to get rank-and-file Demo- crats to really grasp the stakes of the mid- term elections. But here’s the question: Will rank-and-


file Democrats care? The thinking among Democratic strat- egists appears to be that once Democratic voters realize the midterms are a “choice” election, rather than merely a referendum on their party, they’ll turn out. But what if Democratic voters do see this as a referen- dum on their party’s rule and base their en- thusiasm solely on whether they are ener-


gized by the performance of those whom they elected to run the place? For weeks, the White House and con- gressional Democrats have been engaged in a full-blown effort to convince voters that November could bring a return to GOP rule. They have made this case every which way: charging that Republicans will again rule as stooges of Big Oil and Wall Street; claiming that Republicans will rain a bliz- zard of subpoenas on the White House if they take control of Congress; framing the elections as a choice between the policies that got us into this mess and those that are getting us out of it. And so forth. Yet rank-and-file Democrats don’t ap- pear to care that much. Polling shows that the “enthusiasm gap” is holding, with Re- publicans far more excited about Novem- ber. In other words, Democratic scaremon- gering about the GOP takeover doesn’t yet appear to be revving up turnout for this fall.


What if the only way to boost enthusi-


asm isn’t to reveal how successful those aw- ful Republicans were in rendering the Democrats quasi-powerless but to succeed in spite of this problem and do more to mitigate the economic crisis and the pain it has caused? That’s a tall order, and I don’t know if success defined this way is still possible in the short term. If you believe New York Times columnist Paul Krugman, it may be too late because the initial stimulus was too small. Others think congressional Demo- crats can still help fix their political prob- lem by quickly pushing forward with ex- pansive job-creation measures. But even this appears unlikely, because many in the party have decided that it probably can’t be done. How do you make rank-and-file Demo-


crats care about the midterms? Yelling about how mean and nasty Republicans are may not be enough to cut it.


the police. Lo and behold, there was Lili- ane, sounding vague about where she’d misplaced her millions. And there was Liliane’s chief financial adviser, outlin- ing elaborate tax dodges and boasting of having hired the wife of the French budget minister in order to give his machinations the air of respectability. Just when it seemed things could get no worse, another fired employee, the Bettencourt accountant — “Claire T.” — declared that her job had involved stuff- ing envelopes with euros to hand out to French politicians. “They all came to pick up their envelopes, sometimes as much as E100,000, or even E200,000,” she told a Web site. Sarkozy, she said, was among them. Uproar. Chaos. And now, denials: An


official investigator has cleared that budget minister of wrongdoing. Claire T. is hedging. In his interview Monday night, Sarkozy said it was “shameful” that such allegations had ever been made and blamed the tsunami of bad press on people who feel threatened by his economic reforms. Which leaves us . . . where, exactly? Will we ever know if he took the enve- lopes? Will we find out if Liliane knows what happened to her Picasso? I suspect not, but it doesn’t matter: This scandal has already damaged Sarkozy, possibly beyond repair, because it confirms every popular stereotype about the French po- litical and financial elite. The various characters in this drama toss around hundreds of millions of eu- ros as if it were Monopoly money. They toss insults at one another as if the situa- tion were an 18th-century comedy of manners. They dismiss the tax system as something that doesn’t apply to them, and meanwhile they cut the pensions of the peasants. They talk and act, in short, like an ar-


istocracy, not democrats. And this is what hurts Sarkozy, who was elected in 2007 precisely because the French were sick of the Chiracs and the Mitterrands, with their mistresses in government apartments, their double bookkeeping and their shady business acquaintances. There is even something creepily retro about this scandal, which feels as if it should have happened in the France of the 1930s, back when parliamentary de- mocracy was weak, fascism was rising, the Soviet-backed Communist Party was popular and government ministers were stealing money hand over foot. After all, Liliane’s father, the founder of L’Oreal, had a fondness for fascist politics and supported the Vichy regime. Liliane’s an- gry daughter, by contrast, is married to the grandson of a French rabbi who died in Auschwitz. As for that French budget minister whose wife had the misfortune to be hired by the Bettencourts: He is now the labor minister and, as such, is in charge of an extremely unpopular pension re- form, which is scheduled to be presented today and is certain to be opposed by trade unions, socialists and communists —they still exist in France — of all kinds. In his campaign for the presidency, Sar- kozy promised to “break with the ideas, the habits and the behavior of the past” — yet the past has come back to haunt him, more than he could have imagined. applebaumletters@washpost.com


was awed by the complexity of “l’af- faire Bettencourt” the first time it was explained to me, with much rolling of


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