Proof That It's Just Lip Service (Updated)

This morning will be the new House of Representative's much-ballyhooed ceremonial reading of the Constitution. While some are trying to attack this new ritual as a waste of $1.1 million, I tend to agree with the idea that the money angle is not particularly relevant or intellectually honest. Rather, I think that the problem here is that the ceremony is inevitably fated to be devoid of substance, it will change nothing, and by making the Constitution an object of empty ritual, it will drain the actual meaning out of the document itself.

As proof, let Exhibit A be the efforts of Congressman Steve King of Iowa and Exhibit B the efforts of Daryl Metcalfe of Pennsylvania. Both would have Congress adopt into law statutes which would require that at least one parent of a child born in the geographic borders of the United States also be a citizen of the US in order for that child to also be a citizen. Remember, they're using statutes. Statutes changing the way citizenship is derived. Statutes aimed at "anchor babies" and the granting of citizenship to the children of illegal immigrants. Statutes introduced in to the House of Representatives on the very day that this phrase will be read out loud to the House as a reminder of a political commitment to respect the fundamental law of the United States:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

That would be the Fourteenth Amendment to the United States Constitution. Rep. King's and Metcalf's bills would, if enacted into law, contradict the Constitution. This is as close to a no-brainer as it gets.

King and Metcalf, if they really want to change the way citizenship is handed out, need to sponsor a resolution to amend the Constitution. They could do that, of course, but are choosing to do it by statute instead. Perhaps because they don't think they would succeed in amending the Constitution (or they secretly fear they would succeed), but more likely because they value putting on a show of taking a stand against an imagined threat with questionable basis in reality more than focusing their efforts on trying to solve real problems -- problems which Congress' new leaders find politically convenient to backpedal upon (read: "break") their promises to address.

So on the same day that this ceremonial reading of the Constitution is going to take place, it will be demonstrated to be an idle, empty ritual because no matter who controls Congress, no matter what rituals they hold, they will simply disregard the Constitution when it is politically convenient for them to do so. Which is why clear-eyed Americans should view this morning's proceedings as merely an empty ritual.

Update:  And it turns out, they're not even going to read the whole thing -- they're going to bowdlerize it to leave out the historically embarrassing parts. (Thanks to Ken for reminding me of that great word.) I'd say, "If you're going to do it at all, do it right," but the whole thing is already a charade.

Big Day From The Ninth Circuit

Constitutional law geeks like me, especially here in the Ninth Circuit, had a big day today. First, the Ninth Circuit gave a clear, if judiciously-worded, opinion -- when the government posts big crosses, for whatever reason, that conveys a message that the government endorses Christianity. That's the case when it is a war memorial and that's the case when it's a memorial to fallen police officers. Granted that the reasons for posting the crosses are probably noble and have universal appeal, but that doesn't excuse the fact that it's an explicitly religious symbol being used.

Would that the message were clearer to certain members of the Supreme Court, who think that sometimes a cross can be divorced in meaning from its inherently religious symbolism. Then again, at least one of those same members of the Court thinks that the Equal Protection Clause does not apply to women, despite the plain wording of the clause.

My guess is that between the Utah cross case and the San Diego cross case, the Supremes will have an opportunity to consider this issue again, soon. The real question is what will happen to the endorsement test that five Justices followed in Santa Fe Independent School District v. Doe. Which is good for us Court-watchers, because it looks like we won't have a ripe Prop. 8 case (which will have to be re-styled Perry v. Brown) after the Ninth Circuit certified the question of the Prop. 8 proponents' standing to the California Supreme Court, which will delay the panel's decision by six months or more. That means that it's possible Perry v. Brown won't find its way to the Supreme Court's docket until 2013.

Of particular interest in that case is Judge Reinhardt's concurring opinion, in which he goes out of his way to chastise nearly everyone in sight -- starting (impliedly) with the Supreme Court of the United States for creating a murky, hyper-technical jurisprudence of Article III standing, moving on to the plaintiff's lawyers for not naming every county clerk in California as a defendant, then hitting former Governor Schwarzenegger and former Attorney General Brown for not defending Prop. 8 as was their Constitutional duty, and finishing with the intervenors' attorneys for finding the wrong public official to serve as their party representative instead of finding a number of such officials with a variety of standing claims. In other words, any one of these groups could have enabled the Court to get right in to the meat of the issue, but mysteriously no one did and as a result the ruling, and its eventual transmission up the chain to the Supreme Court, will wind up being delayed if not foreclosed. Reinhardt hints rather strongly that he thinks the proponents do have standing to defend Prop. 8, a conclusion with which I, for one, agree, but again, they'll wait for the California Supreme Court to offer that guidance.

Also of profound amusement in that case is Judge Reinhardt's full explanation for why he did not recuse himself from the case despite the fact that his wife is the executive director of the ACLU of Southern California -- it turns out that her duties as a lawyer and his duties as a judge require them to make independent decisions regardless of what the other is doing professionally and since they are both independent human beings, they are capable of deciding things for themselves. I read this out loud to The Wife, who gave the most emphatic approval I've ever heard her give to any legal opinion I've tried to discuss with her.

Car Cameras Coming To California

This Saturday, it became legal to operate a vehicle equipped with a "video event recorder." These have already been in use in some police vehicles, and are expected to be adopted first by public transportation agencies, and then gradually by other users. Inevitably, people will want them in their cars -- or rather, their insurance companies will, and that will induce them to offer a discount on insurance for customers who have video event recorders.

What do these devices do? As explained to the Legislature:

Video event recorders for vehicles capture high definition videos, both of the front of the vehicle and the rear, using a dual camera device and record when an event occurs, including accidents or aggressive driving behavior.  The videos are stored on internal memory together with other information such as G-force values, GPS coordinates, date, time, and more.

So that means that when you have a collision, the video event recorder will have all of this information available for download. So bill passed out of the Legislature with nought more than a peep of opposition, and became operative on the new year.

If a vehicle equipped with these devices is involved in a collision, it will provide data that would be immensely useful for determining liability. That much is obvious. What may be a little less obvious is that it would also be very useful for determining damages -- because it would record the strength of the impact in G-force, as well as enable determination of the vectors. Inflation of strength-of-impact testimony would therefore be easy to detect with this data.

Of course, the uses of such a device by law enforcement don't stop there. A police enforcement vehicle equipped with a video device of this nature could easily record evidence of speeders. While the Legislature's analysis of the device does not include "speed" as a data point recorded by the device, that such information would be recorded ought to be obvious. It could be determined by tracking the amount of time it takes for a stationary roadside object to move through a frame of the camera's shot anyway.

It would be no great leap to integrate a LIDAR device with one of these things and mount it in a police vehicle, and set it out on the road to look for speeders. If that police vehicle were not clearly marked in traditional black-and-white enforcement colors, readily-identifiable by the top-mounted emergency lights, and branded with police insignia, then people would zoom right on by it, and have their license plates and faces captured on camera with LIDAR tracking their speed. At any time. Any other vehicle on the road might be a police speed enforcement vehicle and that means that every time you zoomed by another vehicle, you would be at risk for a ticket.

This would result in a myriad of new tickets. When I have to drive in to Los Angeles, I routinely set my cruise control at or just above the speed limit. In the forty-mile drive, I am passed by literally hundreds of cars. A Highway Patrol vehicle behaving in such a fashion could generate hundreds of tickets an hour.

And there are already hundreds of traffic cameras deployed along freeways, highways, and parkways across the state. More are coming. Right now, they are primarily used for monitoring traffic flow. But it wouldn't take a computer whiz all that long to set up a system to coordinate the video from the stationary roadside cameras with data from police-mounted recording devices.

The ACLU has raised invasion-of-privacy issues here. But I think they're not on strong ground to do so. This is not a particularized search of an individual (which as a general rule ought to be done only pursuant to a warrant or other probable cause).  It is a generalized monitoring of activities and behavior done in a public place. When you're out in public, people can see you. You have no reasonable expectation of privacy while driving a car on a public road.

Now, there are additional things that might happen. Police vehicles equipped with these devices would record what happened before, during, and after an enforcement stop was made. They would record things like how the vehicle was behaving -- was it speeding, was it really weaving around in traffic, was it really being driven "erratically"? That would inform things like probable cause hearings and possibly lead to exclusion of evidence. If the police engaged in physical abuse of a detainee or other civil rights violations, it would record those things happening, too.

Some police officers turn out to be rather touchy about cameras recording their activities, and perhaps for good reason because sometimes those cameras record questionable police activity.  Such police officers get very little sympathy from me, just as the speeders above get very little sympathy from me. The speeders are committing crimes and endangering public safety. Police who engage in civil rights abuses are also committing crime and undermining public trust in authority. Video evidence can potentially cut either way in such a situation, and is often ambiguous, but it provides additional information.

Those officers who might be tempted to step over the line could well find themselves deterred from doing so if they knew that their activities would be recorded and subject to discovery later. Would that mean that they would not enforce the law at all, allowing criminals to go unpunished? I rather doubt it personally -- but better that a criminal go free than that an innocent person be imprisoned; better that the police are too cautious about using their power than too enthusiastic to do so.

What's the dark side to cameras and black boxes recording everything that happens on the road? The ACLU is right that there would be a diminishment of privacy. A trip to the adult bookstore or to participate in an extramarital tryst -- activities which are not illegal but are embarrassing -- would become a less private affair, one which one's spouse and family, employers, and potentially one's voter's might learn about. Is that a bad thing? You'll have to make that call, I won't go that far. I suspect that the data thus recorded would become like any other kind of electronic information -- subject to discovery and judicial weighing of the value of the contents against the privacy and Constitutional concerns.

It's a brave new world out there. You should start reacting to it by observing the speed limit.

Scorecard 2010

Here were my predictions for 2010, and here's how they did:

1. Jon Huntsman will resign as ambassador to China and begin to lay the groundwork for a Presidential bid in 2012.  Has not happened.  In retrospect, I failed to credit the idea that Ambassador Huntsman might actually like being the Ambassador to the PRC and that he might not really want to be President.
2. Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.  Democrats abandoned their strategy of running against George W. Bush in favor of atomizing local races, which was only partially effective; Republicans took the House but not the Senate, although their Senate gains were larger than I had predicted.
3. A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.  I'm taking credit for calling this one pretty much correctly.
4. The net inflation rate of the United States for CY 2010 will be in excess of 4%.  Gratefully, this has not happened, but only because the Fed has kept the prime rate at a rock-bottom level.
5. President Obama will again increase the number of American troops deployed to Afghanistan.  This happened. That doesn't mean I'm happy about it because I'm not, especially because we're now talking about bringing them home with no apparent political objectives accomplished despite hard work and bloodshed by our military.
6. Canada's government will collapse, for real this time, and new elections will result in a badly-fragmented Federal Parliament with the BQ playing the role of powerbroker.  However, the BQ will not be able to leverage this into actual autonomy. Didn't happen; PM Harper took a hard hit, but survived.
7. An El Niño condition will manifest in the Pacific Ocean, relieving California's drought. In fact, it was a La Niña, but we had a wet winter at the start of 2010 and a wet winter at the end of 2010, and have been out of drought conditions all year.
8. Despite the economic help of favorable (that is, "wet") weather, California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship. Mostly happened. The only thing I got wrong was the sales tax hike.
9. A national newspaper of significant stature, I'm thinking the Boston Globe, will be liquidated. The Seattle Post-Intelligencer went all-online and has functionally diedas a result.
10. 2010 will be a good year for the stock market.  The S and P 500 will realize a net gain of over 20% in CY 2010.  As of today, the S and P 500 is 1,124.57, so that means that to win this prediction, the S&P will need to be at least 1,349.48 on December 31, 2010.  The year-end close was it was 1,257.64.
11. Iron Man 2 will be the biggest box office hit of the summer.  But another much-anticipated sequel in the same general genre, Tron 2, will disappoint and lose money.  Wall Street 2 and Sex And The City 2 will both prove to be so unwatchably bad that we all would have been better off had they not been made at all.  Remakes of Clash of the Titans and Red Dawn will both prove to be convincingly entertaining.  Mostly happened. Clash of the Titans disappointed; the release of Red Dawn has been delayed; Tron was fun to watch but looks on track to not make much of a profit compared to its production expenses.
12. In First Amendment news, the Supreme Court will decide for the government, 5-4, in the case of Salazar v. Buono, ruling that a large cross, originally built privately as a war memorial, later transferred to Federal land, then the subject of an Establishment Clause lawsuit, and then the subject of a law transferring the cross to the VFW.  The Court's decision will consider the longevity of the monument as a significant factor mitigating against the finding of an Establishment.  (I consider this a pessimistic prediction, for the record).  Justice Sonia Sotomayor will prove to be the decisive vote in favor of the government.  I nailed it right up to the Sotomayor prediction, which turned out to be wrong. The decisive vote was Anthony Kennedy.
13. In Second Amendment news, the Supreme Court will decide, by at least 7 votes, that the individual right to own weapons articulated in District of Columbia v. Heller will be "incorporated" into the Fourteenth Amendment and thus apply to the several states as well as to the national government.  However, the Court will unanimously decline the opportunity to expand the "privileges and immunities" clause embodied in the arguments.  Watch for the decision in McDonald v. City of Chicago to be one of the last decisions announced in June. I hit this one right on the head.
14. Brett Favre will play his final year for the Minnesota Vikings, and then retire.  For real this time because he'll be 41 years old and in at least moderate pain almost all of the time. He hasn't announced his retirement yet and there will be lots of jokes in August, but after the Vikings' disastrous season, it's clearly time for Brett to say goodbye.
15. Iran will successfully detonate a nuclear device.  This will cause much wringing of hands and gnashing of teeth and many Americans and a significant number of Europeans will consider this to be an existential threat.  While all of this is going on, the Russians will hem and haw and whistle tunelessly while staring at the ceiling while trying to blend into the background and go unnoticed.  However, the Iranians will not use their newly-developed nuclear weapon against anyone, including Israel. Gratefully, this did not happen.
16. On December 31, 2010, the U.S. national unemployment rate will be somewhere between 7.5% and 8.5%. I was too optimistic here; the unemployment rate hovered just under 10% all year.

Not so good this year. Hey, at least I didn't make any predictions as boneheaded as these:

10. U.S. Vice President Joe Biden: "More people are going to be put to work this summer."  June 17, 2010. Embarrassingly for me, Vice President Biden's prediction looks a lot like one of my own.

9. U.S. private citizen Meghan McCain: Sharron Angle, Charlie Crist, Christine O'Donnell, and Carly Fiorina will win their Senate races. November 2, 2010. All those candidates lost, three by decisive margins, congruent with polling data that had been available for weeks prior to Ms. McCain's prediction.

8. U.S. President Barack Obama: Guantanamo Bay's prison facilities will close within one year. January 22, 2009. Still over 150 prisoners there and only three trials have been held, all resulting in convictions.

7. U.S. Gen. Stanley McChrystal: "We're not at the end of the military phase, but we're clearly approaching that." March 2, 2010. Gen. McChrystal was referring to Afghanistan, not Iraq, although in each theater we present have over 50,000 combat troops actively engaged in the vital job of killing bad guys.

5. (Tie) Greek Prime Minister George Papandreou and Irish Prime Minister Brian Cowen: "Our countries don't need to be bailed out" (paraphrase), February 21, 2010 and November 15, 2010. Within weeks of each prediction, both countries were bailed out of imminent financial collapse by special funds created by the EU and the IMF.

4. Newsweek Magazine: Venezuelan President Hugo Chavez will be ousted in a military coup, December 2009. While Chavez remains in power, Newsweek was sold for one U.S. dollar earlier this year.

3. Former Cuban dictator Fidel Castro: The U.S.A. will soon launch an overt attack on Iran, shortly followed by another overt attack on North Korea, June 25, 2010. That, um, didn't happen, El Commandante. Better luck next time.

2. Former U.S. Ambassador to the United Nations John Bolton: If Israel fails to launch an overt military strike on Iran within eight days, the Iranians will achieve a nuclear weapon, August 17, 2010. The Israelis (presumably) used a computer virus instead.

1. Russian Foreign Ministry Diplomatic Academy Dean Igor Panarin: "There is a high probability that the collapse of the United States will occur by 2010," March 3, 2009. Sharp political differences over seemingly vapid causes should not be mistaken for the imminent collapse of a common national identity.

...Stay tuned for my fearless predictions for 2011, some of which will be based on sober analysis and some of which I'm pulling straight out of um, parts of my body.

The Constitution Deserves Better Than Rote Recital

You would think that I would applaud the reading the Constitution in order to open a session of Congress. But I'm not doing that.

I used to be a Roman Catholic. Part of the Roman Catholic Mass involves collective recital of a variety of prayers. As children and teenagers, Catholics go to class to learn the appropriate responses to various phrases recited by the celebrating priest during the various rituals within the Mass -- when to stand down, sit up, or genuflect; when the priest says "X" you say "Y," and so on. And then you go to Mass and you do these things and you do them so much that they become automatic.

Although I haven't been to a Mass at all for at least five years and I haven't really meant it for over twenty,* I'm quite confident that if I walked in to a church, alone, right now, I could recite all the congregation's responses to a priest's saying the Mass without use of a Missal (those little guidebooks they distribute on the back of the pews). Such is the power of memorization and imprinting, especially on an impressionable young mind.

While the classes Catholics take are supposed to teach the young students the importance of the words they are saying, the fact of the matter is they don't do that very often, and even the ones who do absorb these lessons and take them to heart often find themselves just going through the motions, and in candid moments they will admit this. Their minds are not engaged on what they are saying; their statements are automatic and even reflexive while their thoughts, if any, are elsewhere than the subject matter of the Mass.

The Pledge of Allegiance is a more universal example of the same phenomenon: through heavy rote repetition, intellectual meaning is lost. My guess is that only rarely are people given instruction in the meaning of the words of the Pledge of Allegiance, and even if they are, if they are made to recite it, every day, they just do it on autopilot and don't think about what they are saying. They go through the motions, conform to peer pressure, and make an outward show of patriotism without actually feeling particularly patriotic -- the emotional experience becomes that of a duty discharged or an affirmation that they are within the "in-group".

They don't consider that the Pledge is essentially a military exercise. Why are there flags in the first place? So soldiers on the battlefield can identify which combatants are friendly and which are hostile. Pledging allegiance to a flag is stating which side of a fight you're going to be on.

They don't consider what it means to say that the flag "stands for" a Republic. They aren't thinking about the fact that the United States has a republican form of government, a representative federal democracy with a division of powers; they are very likely not thinking about what alternatives to republican forms of government might exist, such as monarchy or military dictatorship or theocracy or policies selected through the mechanism of chance.

At least in the early twenty-first century, it strikes me as unlikely that they are really reflecting on the inclusion and origin of the word "indivisible" in the Pledge. If they did, they would have to intellectually confront the fact that the Pledge is a relic of the aftermath of the Civil War, and that none of the original Founding Fathers ever recited it or anything like it; it is not nearly so ancient or immutable as they might feel comfortable believing.

The final clause of the Pledge is quite ambiguous in meaning, an articulation of a high national ideal and one to which we as a nation hope to strive for but no one should have much difficulty coming up with examples of how we fall short of achieving it. People who engage in rote recital of the Pledge certainly are not going to pick up on the challenge inherent in that phrase to help the nation do better, to be freer, to extend liberty and justice in a more universal way, than we already do.

That's because rote repetition of a series of words is not about encouraging critical thought. It's about producing an outward conformity on the part of those who engage in the ritual. Individual critical thought is not necessary and often detrimental to this sort of conformity.

Someone who thinks that maybe the secession question hasn't really been settled by now, and that it remains a theoretical possibility for a state to lawfully secede from the Union, ought not to recite the Pledge of Allegiance, because the Pledge insists that the nation is "indivisible." Someone who thinks that an individual state is a sovereign nation participating in some sort of a grand Constitutional alliance with forty-nine other sovereign nations -- and yes, there are those who think this way, and some of them hold high office -- ought not to recite the Pledge of Allegiance with its insistence that the United States is "one nation" rather than "several nations." Someone who thinks that certain people in the United States are not entitled to the same kind of liberty and justice afforded to other people -- if they think that enemy combatants seized on the field of battle and imprisoned by the American military are not entitled to due process of law, access to counsel, or the ability to peacefully walk away from their American captors -- ought not to recite the Pledge of Allegiance because they don't really believe in "liberty and justice for all;" at best, they believe in "liberty and justice for some." I think my position on the "under God" clause is already well-known.

But of course the failure to recite the Pledge of Allegiance in a setting where others do so is a rather dicey proposition. Not reciting the pledge when others do so is very likely to be interpreted as an expression of contempt for the United States. When everyone around you stands and places their hands on their hearts† and you don't, they're going to look at you funny. They're going to think less of you. And you're identifying yourself as "not a part of your group." So that's the reason people recite the Pledge -- to conform, not to actually express fidelity to anything.

So when I see that the incoming Congress is making a public spectacle of having a ceremony in which the Constitution is read out loud to the House of Representatives at the start of the session, I start to wonder:

• How many Members of Congress are going to be in the Chamber when the reading takes place?
• Of those Members, how many are going to listen to the reading instead of doing other kinds of work like, say, talking to one another about the government?
• Of those Members who really do listen, how many are going to take the time to understand what is being read to them?
• Will any single Member of Congress change his or her behavior in office one bit as a result of participating in this ritual?
• Can't the same purpose be achieved by distributing physical copies of the Constitution to each Member?
• Members of Congress are already Constitutional officers of the United States and supposed to be possessed of at least average intelligence -- haven't they read the Constitution already? Weren't they all taught this stuff in high school?
• Has anyone given thought to the fact that the Constitution is susceptible to multiple reasonable interpretations by people of strong intellect and good faith?
• Will this ceremony be repeated in future Sessions of Congress, and if so, to what effect?
• If reading of the Constitution becomes a de rigueur ritual, will its substantive meaning atrophy with repetition, the way the vitality of the Pledge and the Mass has done?
• The initiation of this ritual seems to be strongly associated with the incoming Republican majority; will this ritual therefore evolve into a political football, an expression of partisanship rather than one of unity and common citizenship?

The likely answers to these questions displease me so much that what seems on its face, to be a good idea and a nice thing to ritualize, has a real danger, at least over time, of diluting the importance of that which it seeks to buttress. The Constitution is too important to all of us to use as a political football.

So I'm calling this a nice idea but it's not one that we should allow to become an intellectually-dead ritual, so it should be something that if done again at all, is only done rarely.

Now, I do like the idea of all bills needing to include a claim to Constitutional authority in principle, but again, there is more symbolism than substance here and I suspect that this will result in a lot of verbiage but not a lot of actual thought. It will be easy for a Member to include one line in every bill saying "Congress has authority to enact this legislation under the Commerce Clause of Article I, Section 8 of the Constitution," and that will be that. On the off chance that Commerce Clause authority is later found to be wanting in a judicial challenge to the Constitutionality of the law, a Court should be able to examine other sections of the Constitution for authority supporting the legislation whether or not they are cited.

But at the end of the day, rhetoric and ceremony about the Constitution is not the same thing as respecting and following it. Congress can talk the talk, but the measure of its action must ultimately be in deeds, not words.


* Surprise! Nonbelievers attend religious services all the time. Sometimes they even participate. Why would they do this? I won't speak for others, but in my case, it was to please religious family members. There is an element of dishonesty in so conducting oneself, but I maintain that it is equivalent to the dishonesty that is found when one meets an acquaintance for the first time in several months and says "You look great!" instead of a more truthful observation like "You've gained weight!"

† Legend has it that the flag salute used to be an extension of the right arm, with elbow locked at full extension, hand fully extended toward the flag. That form of salute changed in the 1930's because Congress thought it too closely resembled the salute used by Fascists in Europe and Japan.

Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.


* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

Time To Change My Job Description

Take two hypothetical people. And when I say "people," what I really mean is "taxpayers." Let's call these folks "Attorney Alice" and "Minister Mike."

Attorney Alice works for the law firm of Nasty, Poor, Brutish & Short LLP, which pays her $105,000 a year in salary and structured bonuses.

Minister Mike works for Innocuously Bland Protestant Ministries of Springfield, which pays him $105,000 a year, in the form of a $40,000 annual salary and a $65,000 annual "housing allowance."

Neither of these hypothetical characters receive any additional benefits like contributions to retirement accounts or health insurance; both are the sole breadwinners for families of four; both are homeowners; and the above exhaustively describes the money coming in to both of their households.

What's the result? Attorney Alice pays $24,576 in state and federal income taxes. Minister Mike, who you will recall brings home the exact same amount of money, pays only $1,540 in federal and state income taxes -- one-sixteenth of Attorney Alice's tax burden.* Read all about it from the tax preparer's perspective. (Via.)

I'm sure you can guess which one of the two asked for a discount on the tax preparer's fee.

You don't need to be an atheist to see that this result is unfair. It might help to be a lawyer or an accountant, though, to see a Constitutional problem. See, in law school, I was taught that the tax code is written the way it is so that the government can encourage certain behaviors and discourage other behaviors. This example illustrates a powerful incentive for people to pursue careers in religious ministries. That, in turn, would seem to represent a clear preference by the government for religion over non-religion, which when expressed thusly rather clearly violates the Establishment Clause. (See, e.g., Board of Education of Kiryas Joel Village School District v. Grumet (1994) 512 U.S. 687, particularly the phrase "...a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion.")

Now, I don't really have a problem with the government choosing to say that the ministry is a public service profession. I'd readily agree that most ministers, in most settings, provide a variety of benefits for their communities. That they could do so in a secular fashion is irrelevant; they can do so in a religious context and they may express their professional activities as being part of a set piece inseparable from their faith and theological beliefs if they so desire. I don't get to choose your religious ideas for you and if your faith gets you to behave in a noble, morally good fashion that benefits your community, I've no cause to object.

What I want, though, is equality before the law. I, too, am engaged in a public service profession; I assist people with their social problems; I guide them through tough times, I hold their hands while they cry, and I give them advice to help resolve disputes. I am significantly more accountable to the public and significantly more regulated by the public in the practice of my profession than the minister is in his; I am thus even more burdened in the practice of my profession than the minister, all other things being equal (the key equality here being gross income).

So if a minister gets to knock more than half his income out above the line and double-deduct things like mortgage interest, property taxes, and homeowners' insurance, then I should be able to do that, too. It's not fair that because I base my guidance in dispensing that advice from books of law, and the minister bases his guidance on an ancient holy book, the government should treat him better than it treats me when it comes time for us to pay our taxes.

Maybe I should call myself a "minister of judicial dispute resolution" instead of "attorney."

And while I'm on the subject of Establishment Clause violations, I just have to recognize and give thanks to Dan at Bleakonomy for a very amusing shout-out. Merry Christmas, dude.


* To be fair, Minister Mike in this example opted out of Social Security and Medicare taxes, and therefore will not be entitled to participate in those benefit programs upon his reaching retirement. Attorney Alice is legally required to participate in Social Security and Medicare.

This Is Why Textualism Is Better

Original intent is not a great primary approach to Constitutional interpretation. When you have a Justice of the Supreme Court seriously arguing that the Framers somehow didn't mean it when they amended the Constitution to guarantee individual rights and therefore we can, apparently, simply disregard the words they used, you're too far down the rabbit hole. Discerning original intent is very hard to discern from the historical record, and sometimes even counterproductive -- a look at how Title VII came to include women as a protected class is a good example of that.

You start with the words of the law. You understand what those words mean. If that's still not clear, then original intent is one thing you look to in order to flesh out ambiguities -- you also try to understand the policy objectives, the relationship of the government to the individual, and the goal of maximizing personal liberty.

Besides, I kind of think that Madison did mean it when he introduced and advocated for the Second Amendment. Justice Breyer's mistake is suggesting that Madison was of one mind on the issue; Madison, like everyone else, suffered from intellectual inconsistencies, blind spots in his thinking caused by his personal preferences clashing with his overarching philosophy, and was even capable of changing his mind or accepting compromises when the situation warranted it. Rare indeed is the person whose views do not evolve over time and Madison, who was first and foremost a politician, had a more supple ideology than he is widely given credit for.

Hudson On Healthcare

U.S. District Judge Henry E. Hudson of the Eastern District of Virginia has found that the "individual mandate" portion of the healthcare reform act is unconstitutional. His is sure to not be the last word on this issue. What makes it interesting is the grounds -- not buying health insurance is not interstate commerce and therefore beyond the ability of Congress to regulate under the Commerce Clause.

To my knowledge, only two other kinds of human activity have been found to not be interstate commerce in the modern era. Those things are 1) a high school student carrying a concealed pistol while at school, absent specific Congressional findings about the effect on commerce of such activity (United States v. Lopez (1995) 514 U.S. 549) , and 2) a Federal civil lawsuit for nonconsensual sexual contact (United States v. Morrison (2000) 529 U.S. 598). Note that the state court grand jury found insufficient evidence to authorize a charge of rape in Morrison, denying us the ability to describe what sounds like "rape" with that word. More importantly, note how these two kinds of activities are criminal and indeed likely violent in nature.

Compare this to growing and eating wheat rather than selling it under a comprehensive scheme of economic regulation (Wickard v. Filburn (1942) 317 U.S. 111) and smoking marijuana given away for free for medicinal purposes (Gonzales v. Raich (2005) 545 U.S. 1), which the Court has ruled do affect interstate commerce, under the "aggregation theory" -- the idea be being that while an individual transaction has no perceptible economic effect on commerce, if everyone did it, there would be a significant effect on commerce.

As between these four seminal cases, I would have thought that not buying health insurance in the 2010's was most similar to not selling wheat in the 1930's. But Judge Hudson's key reasoning is this:

The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. Gonzales, 545 U.S. at 22, 125 S.Ct. at 2209. This even extends to noneconomic activity closely connected to the intended market. Hoffman v. Hunt, 125 F.3d 575, 587-88 (4th Cir. 1997). But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.⁷ In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

Slip op. at 23-24. By Judge Hudson's logic, then, noneconomic activity closely connected to the intended market, triggered by some sort of self-initiated action on the part of the person thus regulated, is a valid thing for Congress to regulate -- which would seem to suggest that taking a gun to school ought to be within Congress' powers to regulate. There is little doubt that Lopez "self-initiated" bringing his gun to school and there seems little doubt that if a teacher is thus deterred from going to school for fear of being shot by Lopez, there is an economic effect (the teacher isn't paid) which if repeated and aggregated over a large pool of people, would drag on the economy.

What's more, footnote 7 in the opinion reads: “The collective effect of an aggregate of such inactivity still falls short of the constitutional mark.” Here, I just can't see where Judge Hudson is coming from. The larger the pool of insured in an insurance market, the more diluted individual risks become and thus the amount of premium per policyholder needed to cover claims decreases. If large numbers of people voluntarily abstain from purchasing a particular kind of insurance, the premium per policyholder rises. This is not a hugely complex concept -- and even if it is ultimately proven incorrect, Congress is clearly within its discretion and authority to be thus incorrect because the idea is not so far out of left field as to be "irrational."

As an alternative, the Government argued that the individual mandate is enforced by a "penalty" that should be considered a "tax," but Judge Hudson looked at the exact meaning of those phrases -- a "penalty" is levied in response to an unlawful act or omission, while a "tax" is a burden imposed to generate revenue for the government -- and concluded from legislative history, legislative text, and political statements of both Congressional leaders and the White House that the claim that this enforcement mechanism is a "tax" is a "transparent afterthought" and therefore not to be credited. It is a penalty, according to the Court, a penalty designed to punish conduct deemed undesirable by Congress, viz., not buying health insurance -- and since the conduct deemed undesirable is not itself something that Congress can regulate, Congress lacks power to impose a penalty for it. This portion of the reasoning seems sound to me.

As I noted above, this is not the end of the road for the individual mandate provision of the healthcare reform act. It does demonstrate that the idea that the law exceeds Federal power is not a crazy one, it is persuasive and serious and should be carefully weighed. To damn modern commerce clause jurisprudence as "unprincipled" is only to say that it is like much other Constitutional jurisprudence, in that much depends on the policy desirability of the law, the political mood at the time of the decision, and the general philosophical cast of the nine Justices who eventually and inevitably will render a final decision.

I don't particularly want the individual mandate to be Constitutional. And I'm pleased that the bench is taking seriously the notion that there are Constitutional limits on Congress' powers. But I have a hard time squaring Judge Hudson's reasoning with the outstanding jurisprudence. Unless there is going to be a new contour in Commerce Clause jurisprudence written in by this case, I would have ruled that this was near the limits of, but still within, Congress' Commerce power.

The Oral Argument

I've tried, something like twelve times tonight, to load up and watch the oral arguments in Perry v. Schwarzenegger. I've been mostly frustrated.

I half-listened to the arguments about standing at work, and they affirmed what I already thought -- there is something fishy about the elected officials of the state refusing to defend the law, and it leaves a hole in the format of adversarial proceedings that needs to be filled before a decision can be fully legitimated. The voters passed a law, and someone has to speak for the voters. The whole reason there are ballot initiatives is so that the voters can go around the public officials who may not like a law for whatever reason, so again, someone has to be able to speak for the voters. I thought that the proponents were reasonably strong on the standing issue, although I was singularly unimpressed with the argument by Imperial County -- why the Supervisors of Imperial County couldn't get the actual county clerk to stand as an intervenor is a good question, which was left unanswered. The opponents were strongest pointing out that Article III standing requires a particularized, personal injury by a litigant, which had not been articulated by anyone -- but they didn't address the fundamental question of who speaks for the voters in defense of what the voters decided to do.

On the substantive merits, I only got through about two-thirds of the proponents' argument. Their attorney did as well as anyone could under the circumstances but here he seemed much less convincing than he did arguing for standing. Essentially, he relied on the procreative argument as a rational basis for Prop. 8 after having begun by admitting that marriage is a fundamental right, if not the most fundamental right of all. This is no way to get into the world of rational basis review -- fundamental rights, as all first-year con law students know, are analyzed for strict scrutiny.

Worse (for the proponents), they seemed to encounter skepticism from Randy Smith, the most conservative of the three judges assigned to the panel, about whether Prop. 8 had even a rational basis justification.  Judge Smith appeared to be moved by the presence of a broad, close-to-marriage in substantive rights, institution of domestic partnership which was unchallenged by Prop. 8, and he essentially asked the proponents, "So doesn't that leave us with just the name?" The proponents' attorney responded that "The word essentially is the institution; you cannot separate the two." So even if there is a thing, "X," that is functionally identical to marriage, the different taxonomy created a substantive difference. Judge Smith looked like he had been served a turd on a hoagie roll when he was asked to swallow that one. Maybe I'm reading his facial expression wrong.

The rest of the emphasis I could get from the proponents' argument rested on Baker v. Nelson (1972) 409 U.S. 810, a one-line opinion by the Supreme Court declining to grant review to a decision of the Minnesota Supreme Court that denied marriage to a same-sex couple in the early 1970's for want of a "substantial Federal question." Because under the rules of the Court then in existence, a decision to not grant appellate review to a state supreme court case counted as a substantive ruling, the argument is that Baker is binding Supreme Court precedent that there is no Federally-protected right that would compel a state to issue a marriage license to a same-sex couple. Today, the Baker decision would have been decided to the same result and using the same reasoning as a procedural matter, denying certiorari.  So it's not exactly clear whether Baker remains a substantive, on-the-merits decision or not, but the proponents certainly argued that it was binding precedent.

I could not get Ted Olsen's argument to play at all despite several attempts to run the C-SPAN video.  Just wouldn't do it. I had to skip ahead to Therese Stewart's argument, which nearly ended soon after I started it, so I really don't have a good sense of what the opponents of Prop. 8 said. This summation of the argument suggests that the proponents' citation of Crawford v. Los Angeles Board of Education made some headway. In Crawford, the voters reversed, by initiative, some court-mandated busing of students to remediate racial discrimination. Because the busing was only one way that the race discrimination problem could have been addressed, the voters were free to tell the school system, and the state itself, "No, go find another way to deal with this." Because that, by itself, did not violate the Constitution, the will of the voters was upheld against a 14th amendment challenge and the initiative stood.  I'm not sure that I buy this as a point for the proponents, though. The opening of the proponents' argument was a structured concession that the voters cannot pass initiatives that defy the Constitution -- so the question is whether there is a right to marry in the Fourteenth Amendment that includes the right to marry someone of the same sex. If I were arguing for the proponents, I'd have stuck with Baker as the centerpiece of that argument, too.

Anyway, I did get to a significant portion of Therese Stewart's analysis. (I could swear that I had Therese Stewart as an adjunct professor in law school, that she taught my State Constitutional Law class. But I can't find any record of that at all one way or the other. She sure sounded like the woman who taught that class, smart, strong, and direct.) She pointed the Court back to the second substantive issue on the merits, which was whether Prop. 8 crossed the line into classifying citizens for the sake of having a classification, singling them out for special invidious treatment by popular initiative -- clearly aiming directly at the holding in Romer v. Evans. Romer is still one of the most controversial decisions from the Court in the past generation, but its author, Anthony Kennedy, remains on the bench of the Supreme Court and is in all likelihood the swing vote if and when this case ever gets there. So this strikes me as laying the foundation for the real battle, and Stewart was laying clam to the terrain upon which she wants to fight. That's smart advocacy.

The impression I was left with is that Imperial County for sure is unlikely to have standing. The Ninth Circuit Panel may well certify the question of the proponents' standing back to the California Supreme Court. Frankly, I think that's a good idea -- it will establish whether California state law does or does not convey a right to speak on behalf of the voters when elected officials will not do so for whatever reason. If the Court chooses to find standing by the proponents, there is no doubt that the proponents here gave Prop. 8 a vigorous defense. And the system only really works when both sides present their cases with zeal and urgency instead of proceeding by default.

Now, here's the thing. If, as I predict, the panel certifies the question of standing to the California Supreme Court for an advisory opinion, that will take several months. Then it will take several more months for an opinion to be crafted, which will in all likelihood affirm the trial court ruling in some way. I wouldn't be at all surprised if the panel ducks the merits altogether and rules only on the basis of standing. But if it does address the merits, it will do so in a full-throated way, and likely find that Prop. 8 fails the rational basis test. That decision will then go on to review en banc, before an 11-judge panel of the Ninth Circuit. From there, whoever loses will petition for certiorari to the Supreme Court in, probably, early 2012.

Which of course will grant it, and guarantee that the issue is front and center during the 2012 Presidential election. A friend thinks that the Supremes will want to duck the issue, but I say, all Nine of the Justices worked very hard to get on the Supreme Court, and the whole, entire reason that anyone would angle to be on the Supreme Court is to be able to decide this very case. So we'll still be talking and arguing about this issue in two years. Maybe longer than that.

Following Up On A Pledge Case

About two months ago I wrote about a judge in Mississippi who imprisoned an attorney for not reciting the Pledge of Allegiance.  As I predicted, the judge received a public reprimand and has acknowledged his error.  The attorney who was on the receiving end of the order claims to not hold a grudge and has made public statements of respect for the judge; if his private feelings are any different, he is keeping them to himself. This seems to me to be the right resolution.

The wheels of justice grind slow, but often enough they come to rest in the right position.

Let's Get Ready To Wharrgarbl!

Headline: Owners of Park51 project apply for $5,000,000 in Federal redevelopment funds designed to encourage development in downtown Manhattan after 9/11.

Reaction: Wharrgarbl!

Examples of resulting wharrgarbl may be found in all the predictable places, like here, and here. And the outrage can really die down -- the chances of this money actually being awarded are low, low, low.

But for the record, I think we have better things to do with Federal money than this. Not out of any particular distaste for Islam on my part, but rather out of a particular dislike for Federal money being used to help build any house of worship, anywhere, whether directly or indirectly.

That, and the fact that we don't have a budget surplus with which to enjoy questions of which private projects deserve public support. Our government can't afford to be doing things like this right now, for anyone.

Three-Stage Compromise On Screening

Every time airport security procedures are tightened, a margin of people who otherwise would have traveled by air decide not to. In some cases, they opt to travel by car instead. For instance, overall airline use declined when the TSA began x-ray screening of carry-on bags. Statistically speaking, car travel is much more dangerous than air travel. So what do you get when you put them together?

...roughly 130 inconvenienced travelers died every three months as a result of additional traffic fatalities brought on by substituting ground transit for air transit. That’s the equivalent of four fully-loaded Boeing 737s crashing each year.

Feel safer yet? How about those investments in the airlines -- are you ready to buy stock in Delta or United yet?  In fact, their prices are trending up over the last year or two. But as an investor, do you really think the new TSA procedures are going to help these struggling mega-businesses increase profits? The answer may be "yes," if the new procedures are implemented judiciously.

I continue to be surprised at finding my own attitudes on this issue to be the ones on the periphery. Maybe I have more body modesty than most people. Maybe I have whipped myself into a needless frenzy and it's just really no big deal for most folks to have strangers working for the government looking at unsexy pictures of them naked or to be felt up. Maybe it matters to them that the TSA agents doing the screenings are obviously not doing it for their own sexual pleasure. You've seen the picture to the left by now, and it's clear that the agent is not enjoying himself. Gratefully, we can't see the face of the passenger being screened; the man can retain that much of his dignity. Still, the body language suggests that the passenger isn't having any fun enduring the search either.

So once again, I suggest a compromise position. We have new technology and a new procedure, and apparently some people are convinced that these are good ideas and not huge impositions on travelers. I think otherwise. Here's my suggestion -- a three-stage process.

Everyone goes through a "primary" screen. That consists of removing one's shoes and emptying one's pockets, and walking through a metal detector and chemical sniffing device. Shoes, pocket contents,and carry-on bags go through an x-ray machine.

If the x-ray reveals an object that raises a reasonable suspicion by the security screener, or the metal detector and chemical sniffer repeatedly report the presence of metal or dangerous chemicals, then we go to a "secondary" screen, which consists of unpacking the bag and looking for whatever is setting off the x-ray, or using a metal detecting wand or close use of the sniffer to localize and identify the source of the alarm.

Should this secondary screen not identify the source of the problem, then the TSA can use the full-body scanners or "enhanced" pat-downs. This would be a "tertiary" (or "third-stage", for those who find "tertiary" hard to pronounce) screen, done rarely.

On its face, this is quite similar to stated TSA policies in place today. The big difference is that instead of randomly picking people for the tertiary screen, the primary and secondary screening procedures are used to weed out people for whom there is no reason to suspect the tertiary screen would yield anything. It incorporates the concept of "reasonable suspicion" into the governmental search. "Reasonable suspicion" is, as criminal and Constitutional law geeks can tell you, a standard more relaxed than "probable cause."

I would also add that in the case of an enhanced pat-down, an advocate for the passenger could electronically record the pat-down to ensure that nothing untoward was going on. I will exonerate, in advance, the vast number of TSA agents assigned to this task as not taking any pleasure from so doing, and credit to them, in advance, a good-faith desire to only do their jobs. It's the few bad apples in the bunch that concern me here. And given that everyone in the world now knows what an "enhanced pat-down" involves and what it looks like, there can't possibly be any security benefit to be derived from prohibiting the recordation of any specific pat-down.

Finally, there should be signs posted and disclosures made whenever someone buys a ticket that they may be subject to these procedures, in clear, simple language. They probably don't need to reference specific Constitutional rights but they do need to make clear that if you do not consent to the screening procedures, you will not be allowed to board an airplane. To that end, if at any point in the security screen a passenger decides to walk away from the airport and find another mode of transportation, they should be free to go without penalty. It must not be the case that once you're in the system, you can't get out. If the purpose of the screen is to assure people that every passenger on the airplane is safe, then allowing someone who refuses to submit to the screen to leave without penalty does not diminish that gloss of safety because the person who wasn't screened isn't on board the plane.

Hopefully this would keep the screenings moving quickly and efficiently, result in fewer uses of what I would relegate to a tertiary level of screening, appropriately disclose to travelers what they're in for and provide them with a meaningful opportunity to not subject themselves to the process. At the same time, it should retain the ability of the government to provide the "feeling" of safety (although not its reality) which seems to be the object of the exercise.

United States v. Ghaliani

Ahmed Ghaliani was accused of being a significant participant in the August 7, 1998 bombings of the United States embassy complexes in Kenya and Tanzania. At least 223 people were killed and over 4,000 were wounded in nearly-simultaneous suicide bombings of the two embassies in Dar es Salaam and Nairobi.

After a substantial political controversy, Ghaliani was tried in a regular United States District Court in the Southern District of New York. A critical witness against Ghaliani and a substantial confession were excluded from the trial because the judge found that the evidence had been obtained through unconstitutional interrogation techniques (commonly called "torture"). The result was that Ghaliani was acquitted of 284 of the 285 counts against him, being convicted of only a single count of conspiracy.

Let's not lose perspective on the real-world result. Ghaliani hasn't been sentenced yet, but the minimum sentence that can be imposed on him is 20 years and the judge can find that good cause exists for a life sentence. There is no parole in the Federal penal system -- if you're sentenced to serve 20 years, you're going to serve 20 years. This is not a man who is going to be walking free, planning additional crimes, or hanging around with his terrorist buddies again any time soon. That's the result from a single count.

Some have argued, and with some weight to the argument, that torture is in fact useful to extract information from prisoners. But let's distinguish "information," which can be useful and used for gathering additional "information" and possibly motivating intelligence or military operations, from "evidence," which can be used in a court. Information which is obtained wrongfully cannot be used as evidence.

It needs to be underlined that the same exclusion of evidence would have applied in a military tribunal. Substantial, educated, and mature discussion of the issue can be found at the excellent blog Lawfare, which has been having something of a Ghaliani-fest since the verdict was returned. It also bears noting that the conviction's having been obtained in a civilian court makes the conviction much easier to defend on appeal. What it really comes down to is not in what forum Ghaliani should have been tried but whether he should have been tried at all or simply held without trial indefinitely.

While I can see the attraction to indefinite detention, our legal system cannot tolerate such a thing forever. Someone who is in the power of the government at some point transforms from being a "detainee" to being a "prisoner" and becomes entitled to some kind of legal process, an opportunity to know why he is being held, and to present evidence and argument in a meaningful bid for freedom. We do this not because we lack concern about guys like Ghaliani. We do this because it is the only way for us to act consistent with our own morals and ideals, it is fundamental to our system of government, it is at the still-beating heart of why there is such a country as the United States of America in the first place. We must not fear truth, and truth is, hopefully, what trials are all about.

What bothers me about the verdict here is the question of "what if he had been acquitted of everything," because then we would have to make a very hard decision. If Ghaliani is really as dangerous as the government tells us he is, he cannot be allowed to go free. But if he is acquitted of any crime, then we have no legally valid option but to let him go free. And the fact that the Administration announced before the trials started that there was no chance at all that Ghaliani would be allowed to breathe free air, this makes the trial appear to be a show trial. I'd rather that they simply skipped the trials altogether than have the trials not be meaningful. If Ghaliani had been acquitted of everything, he should have been set free.

The big problem here, and I don't claim to have any easy, pat solutions to it, is that so much evidence against so many of these Really Bad Guys is tainted from being obtained through torture. So it could very well be the case that most of the really good evidence we've got against, say, Khalid Sheik Mohammed will be excluded from any court. So we return to the question of whether we should have trials at all.

There is insistence in some quarters to treat terrorism prisoners, and all anti-terrorism activities, as military in nature. If we were talking only about protecting ships in foreign ports, fighting bad guys in the mountains of Afghanistan, and shooting missiles at camps, I could see that. But we're also told that there are dozens of terrorist training camps within the United States, and we know that U.S. citizens are involved in terrorism activities of some kind. There is intelligence that must be gathered within our own borders and from our own citizens. Some interaction with the criminal justice system is therefore inevitable.

It's very, very tempting to say, "Keep them in Guantanamo and throw away the damned key already." But here's what I can't get past: if we really don't have any good evidence to offer against someone we're keeping under lock and key, we shouldn't be keeping that person under lock and key. Trials are where that kind of evidence is tested. We fought the Revolution for that.

Trials are a risk for the government. But at the end of the day, our choices are to betray our own principles or take the risk. If we succeed, the problem of what to do with these guys really does go away -- they go into the penal system and that is that. Let us hope that we have sufficient admissible evidence for the rest of the prisoners with whom who we eventually have to do something.

You Need To Let Us See Your Ass Crack Because Of 9/11

Hat tip to Doug Mataconis.

Dear TSA: Please Dispense With The "Freedom Feel-Up"

I've been thinking more and more about the nudity scanners and genital gropes that airline passengers are being asked instructed by the government to endure if they want to travel by airplane.

First of all, let's start with the law.  In the case of United States v. Aukai (9th Cir. 2007) 497 F.3d 955 we get from an ideologically balanced panel of judge a detailed examination of exactly how far the TSA can go in requiring all passengers to submit to an "administrative search" before more intrusive searches can be implemented. In Aukai, the defendant went through the same sort of screening that we've all been used to for quite some time -- he walked through a "magnetometer" or metal detector and put his bags through an x-ray screening machine. The metal detector indicated the presence of metal, and the defendant denied having anything metal on his person. The TSA screener then ran a wand over the defendant, and it registered metal in the defendant's front pocket three times. A supervisor ran the back of his hand on the outside of the defendant's pocket, felt something, and asked the defendant to empty that pocket. When the defendant did so, it was revealed to be a meth pipe.* The critical passage:

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose.”

So it was okay to require Aukai to go through a metal detector and run his bags through an X-ray machine; these are "reasonable" searches permitted under the Fourth Amendment. But the wanding, pat-down, and command to empty pockets was not justified until those less intrusive search methods raised a suspicion that there might be something dangerous in Aukai's pocket. It turned out to be evidence of Aukai's criminal stupidity, but of course the TSA officers would have had no way of knowing that from the metal detector devices.

Second, consider  Ken at Popehat's nice little thought experiment. Most people think they can distinguish packaging from content; is it true here? If something feels as though it's imposed on us from outside, would we resist it? But if it comes from the government, swaddled in a pretty assurance that "It's For Your Own Safety," why do we turn in to sheeple and quietly consent? I'm not out of line to say that most people have and will consent -- alarmingly, roughly four in five Americans polled support these screens although, as Nate Silver points out in the link, it's easier to support someone else's loss of dignity than your own.

Third, a look at how the Israelis do airport security. Notice how it is person-specific, not object-specific. Kevin Drum points out in that article that the Israelis make no bones about racially profiling airport users (not just passengers), and that we would be required to omit that portion of our own security screens because our Constitution is written differently than Israel's. Nevertheless, it seems to me that there are rather important lessons the Israelis could teach us which we are ignoring.

Fourth, speaking of Israelis, here's a gem from an Israeli security expert, which is to say, someone who has training in how to bomb airplanes: "I can overcome the body scanners with enough explosives to bring down a Boeing 747." Further evidence supporting the proposition that this is all a big, expensive, inconvenient act designed to make people feel better but which does not also materially enhance the reality of safety.

Fifth, a statement from a TSA official that the public must learn to tolerate Fourth Amendment violations in order to travel in the air. Perhaps the guy spoke inartfully, perhaps he knows full well what he was saying (admission between 2:30 and 2:40 in linked video).

Sixth, a few reasons why we should care about this. Most prominently, the government lies when it says that the images of naked people aren't stored and kept for later use and/or amusement of bored TSA workers looking to mock citizens at the airport. Let me quote a little bit more from Ken at Popehat, because he's done a better job than I of finding good links for good reasons not to trust the government with this sort of power over people whom it has no probable cause to think are committing any crime:

the TSA can’t distinguish between a thing and a picture of a thing, thinks that it has authority to investigate illicit cash (and believes that telling them it’s none of their business represents suspicious behavior), relies on junk science to “detect” danger, feels entitled to your unquestioning obedience (and tries to earn it not with competence but with, in effect, a also-ran muppet), and is vigilant against pressing dangers like Decepticons. Of course, if you recruit on pizza boxes, you’re not going to wind up with Elliot Ness. You’re going to get people who use the body scanners to make fun of people’s genitals, pretend to find cocaine in passengers’ luggage as a prank, steal from carry-ons, and generally act like badged choads. Oh, and sex offenders. Don’t forget the sex offenders. A security checkpoint is Walt Disney World for them.

* * *

Consider this story from a groped rape survivor: ... Think she’s alone at being treated like that? Think she’s being over-sensitive? Think again. Oh, think again.

* * *

Another addition: “Heads up, got a cutie for you.”

* * *

And Another: Hate kids? Love kids more than currently legal? Either way, a career at TSA has you covered!
And still more: Really, who am I to criticize the brave men and women of the TSA, who are all that stands between us and the menacing terrorist snowglobes?

* * *

More: Sure sounds like sexual assault to me.

How much is enough before people will say, "Enough!" So to conclude this festival of links demonstrating just how far the TSA has gone, seventh let's recall the guy who refused to submit to one of these searches, gave up his flight, was released by the TSA into a crowd of people, and went home causing no security risk at all. Yeah, sure enough, for daring to defy the TSA's authoritaii, he's now subject to a civil suit from the government, and they're seriously considering actually going through with it. The fact that this is the guy who actually publicized the TSA's tactics and exposed them for the petty martinets that they are has nothing to do with the fact that they're suing him out of the thousands of people they could have sued. No, nothing at all.

The Founding Fathers wouldn't have put up with this. They'd have recognized it for what it was: the government abusing and exceeding its authority; they wouldn't have put up with what is, in effect, a General Warrant. At most, these kinds of scans and searches should be reserved for people whose behavior and the results of other kinds of appropriate and Constitutional searches raise specific flags and concerns. At best, maybe we ought to take a few lessons from our friends in Israel. El Al painfully learned its security lessons in the 1960's and hasn't experienced Major Asset Loss since then -- so how do they do it? One thing's for sure -- they don't worry about peoples' feelings or ameliorating commercial pressures on donors to political campaigns. They do what needs to be done, and they do it without looking at or feeling peoples' sexual organs.


* I thought meth pipes were made of glass, not metal, but I don't smoke meth so I'm probably not the best person to opine on such matters.

Precautionary Fondling

I'm not fond of the idea of a TSA agent feeling me up the next time I try to board a plane. Not that I think that the agent is really looking forward to it, either. But is the threat of having a stranger grabbing your genitals enough to get Americans to finally address, in a serious way, the extent to which we're willing to sacrifice our dignity, privacy, and liberty, in exchange for the promise -- sure to be broken eventually -- of enhanced security.

But it should never come to something like this.

We fear terrorists on airplanes, and rightly so. But the response to ever-tightening and ever-more intrusive security measures is for terrorists to become ever smarter and more clever in the way they conceal weapons. And if we are looking at air travel security from the macro-level, the level of making policy, the truth of the matter is that some level of criminal activity cannot be prevented at all. At least one airline pilot is concerned that our response is one of panic and short-sightedness rather than resolve and intelligence, which he fears will not only result in a drag on air transport services, but less security in the services that are provided. He provides a very interesting historical perspective along the way.

This brings me also to an article linked in a comment here, a short thought experiment by the late, great David Foster Wallace. I have taken it as an article of faith that a nation as technologically advanced and wealthy as the United States does not need to choose between security and liberty; we ought to be smart and capable enough to have one without diminishing the other. Wallace asked, in effect, what if that is not ultimately true? What if in order to have safety we must diminish our own freedoms to the point that we no longer have the liberty that makes life in our society worth living? Would we choose to tolerate a certain level of terrorist and/or criminal-induced violence in order to preserve our liberties -- does this mean that there is a calculus of liberty versus life upon which we need to find an ideal balance point?

A disturbing thought indeed. A life enslaved is a life not worth living, for the most part, unless there is a possibility of liberation at some point in the future. But liberty obviously cannot be enjoyed if it is accompanied by fear, or more basically, if one is dead. Nor is the idea that other people are free much consolation to those who mourn the victims of a criminal (or terrorist, if you prefer) act.

But as I stated in a response to that comment, here I look to our Founding Fathers for inspiration. It's our choice to make, but this is what heroes and myths are for -- to help guide us make decisions in real life by providing role models. The United States' Founders were men who made a conscious decision to expend blood in the pursuit of liberty. They knew they were going to war, and that had they opted for peace, they would have continued to have life and (at least for most of them) economic prosperity. They chose a more risky path, one in which not only their livelihoods and wealth, but their safety and lives and those of their families and countrymen, were sufficiently at risk that they knew some lives would be lost. The chose to pay the price of blood in order to have freedom.

I'm pretty confident that none of them would have willingly submitted to a uniformed member of King George's government grabbing their wieners prior to boarding transport vessels so as to check for unauthorized satchels of gunpowder. I linked above to a guy who refused to submit to a genital grope or nude scan of his body and invited civil claims against him by the government for his doing so, and I have to think that George Washington would have admired him.

Do we today choose to pay the price of freedom in order to have -- what? A marginally increased level of protection against criminals? Worse, the illusion of a marginally increased level of protection against criminals? I don't want to pretend that there aren't security risks out there nor would I suggest that we abandon security screening entirely. But I also don't want to permit the security apparatus of the government to reach an unreasonable level of intrusiveness. There has to be an appropriate and effective middle ground, and by the time we've got passengers submitting to full frontal nudity views and genital pat-downs, we've crossed the line.

(Image from boingboing.net; hat tip to James Fallows)

Raising A Red Flag About Heckler's Vetoes

What is it with all the stories about hecklers' vetoes? After I felt moved enough by Pat Condell yesterday to praise a culture of free speech, I turn around and see this -- someone's offended by a kid putting an American flag on his bike, on Veteran's Day, and a public school official decides to censor it. The question is whether the display of the flag (or a corresponding counter-display of, say, a Mexican flag) would reasonably be seen to incite violence. Which seems very strange in this case because doesn't the school fly the American flag every day?

You don't have a right to not be offended. The fact that your child is learning about bad things that really did happen in history does not mean you can sue the school district for failing to sugar-coat things. You don't get to use the power of the government to silence speech you don't like simply for the reason that you don't like it.

What I suggest you do if you feel emotionally offended by someone expressing an opinion or discussing an issue in a way with which you disagree is to get over it and add to the debate rather than trying to subtract from it. This is the case even if the people who are exercising their rights of free speech are, by any objective or reasonable standard, best regarded as flaming asshats; flaming asshats have free speech rights, too.

The remedy to hearing really stupid, offensive things is not to censor them. It's to point out that they are stupid and offensive, and to offer one's own take on the topic under discussion. This is true even if the stupid, offensive statements you're calling on the carpet were articulated by your own husband who happens to be a United States Senator and a former major party candidate for President of the United States. The remedy for unpleasant speech is more speech.

You would think that would be obvious. Apparently, though, it isn't. Regardless, censoring the American flag on Veteran's Day not only makes for terrible politics, but it also crosses the line into a First Amendment violation. Absent a particularized, articulatable threat of violence or disruption of school activities, the student can fly a U.S. flag, a Mexican flag, can wear a pro-gay-rights T-shirt or an anti-gay-rights T-shirt, or any other kind of expressive display she wishes.

For the record, referring to each of the linked stories, my immediate reaction is:

1. The kid in Monterey ought to be able to put an American flag on his bike if he wants. The school district was wrong to tell him to take it down. What the school district needs to do is teach the students that it's okay to be proud to be an American, and it's also okay to be proud to be of Mexican heritage, so it's not worth fistfights over racial tensions.
2. The father in Michigan doesn't have the right to tell the school district not to use a particular textbook. If he doesn't like his daughter being taught from that textbook, maybe he ought to be an effing parent and talk with his daughter about what she's learning at school, rather than generating another stupid lawsuit I'll have to apologize for in another forum.
3. The kids wearing the "straight pride" T-shirts have a right to do so. The fact that their actions are within the scope of their First Amendment rights does not ameliorate the fact that they are flaming asshats for choosing to use their rights in this fashion -- and worse for attempting to cloak their bigotry in religion, because by doing so, they make their coreligionists look bad too. The right response to bigotry is to criticize the bigots.
4. I agree with the sentiments in the anti-bullying video, provided that the celebrities (and Cindy McCain, rather boldly subverting her own husband) are advocating that bullies should be ostracized by their peers, rather than punished by the authorities, for things like taunting and teasing. Violence or threats of violence should be punished, regardless of the motivation for the violence or threatened violence.

The big picture is that free expression is the paramount value here; no one has a right to silence people who say offensive things.