Material Breaches, Proving a Negative and the Law of False Exculpatory Statements

To me, it seems like there is this weird disconnect on the inspections in Iraq. We hear Hans Blix castigating Iraq for not cooperating, then we hear that there is no "smoking gun." Lost in the shuffle is why Iraq has the burden of proving a negative. Since this was unclear to me I am linking to a portion of Talking Points Memo interview of the Brookings Institute's Senior Fellow Ken Pollack who comments:

And you put it to him exactly the way the president did last night. 'Saddam Hussein, you have admitted that you manufactured VX. We also have receipts that show that you purchased the following chemicals which have very limited uses, one of which is making VX. Where are those chemicals?'
The UN resolutions required that [he] account for those chemicals and for twelve years Saddam has just been looking us in the eye and saying 'I don't know what you're talking about. I refuse to answer the question.' Imagine what that would look like if this were Law and Order and if this were Jack McCoy asking that question again and again. And after each presentation of the evidence and question to Saddam, 'What have you done with those materials.' And the Iraqi response is 'We're not answering that question.' That's a pretty damning indictment.

On the issue of "proving a negative," Bush has constantly reiterated that we know that Saddam is a liar, as if that fact proved the further point that Saddam possesses Weapons of Mass Destruction. Bush's syllogism has generally been ignored, except when opponents of Iraqi intervention point out that Saddam's credibility does not prove the existence of WMDs. In point of fact, however, as a matter of law, it does.

One of my favorite cases is Donchin v. Guerrero 34 Cal.App.4th 1832, 1839-1840, 41 Cal.Rptr.2d 192,197 (Cal.App. 2 Dist.,1995), which deals with the infinitely fascinating issue of a landlord's liability for injuries caused by vicious dogs on their property. In California, a landlord can be held liable for personal injuries caused by vicious dogs if the landlord knows that the dog owned by his tenant is vicious. (I'm fairly sure that this precis of the law is correct; dog bites are really Penner's area, and surprisingly lucrative.) In Donchin, the Landlord denied that he knew that the Tenant had a dog, which statement appeared patently false. The significance of this was summarized by the Court in the following passage:

There is more than one way to prove the existence of a fact, and thus more than one way to create a triable issue about the existence of that fact. One way is to introduce affirmative evidence tending to show the fact exists--the testimony of someone who observed it or who observed something from which the existence of the fact may be inferred. Another way, however, is to introduce evidence tending to show an opponent's denial of the existence of the fact is to be disbelieved, that is, evidence challenging the credibility of his denial. For, as a matter of common sense as well as formal logic, to disbelieve the denial of the existence of a fact is to believe in the existence of that fact. (For example, a defendant's alibi defense denying he was at the scene of the crime but rather was somewhere else is proven false. The jury thus disbelieves his denial and instead believes he was at the scene.)

In Donchin, a jury could reasonably conclude that its disbelief of the Landlord's denial that he knew that his tenant had a dog entitled it to believe that (a) the Landlord knew that the Tenant had a dog and (b) the Landlord knew that the dog was vicious.

I have always wondered if this reasoning was philosophically sound, but it does seem pragmatically justified.

So, with respect to the issue of Saddam denial of the possession of WMDs, disbelieving Saddam's denials would in a court of law allow a fact finder to conclude that Saddam has the WMD's he is falsely denying.

Advantage: Bush, whose "simplistic" statements, once again, reveal hidden depths.