Author Page for Scott Lemieux
I am working on a longer piece about how Sotomayor has emerged as the leading civil libertarian voice on the Court. But in the meantime, read Lithwick on the case that came down Monday, in which the Court held that a search of a motorist who was not in fact doing anything illegal was nonetheless “reasonable” under the Fourth Amendment. Sotomayor, alas, was the only dissenter. Her opinion merits quotation on several points:
Departing from this tradition means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down. Traffic stops like those at issue here can be “annoying, frightening, and perhaps humiliating.” We have nevertheless held that an officer’s subjective motivations do not render a traffic stop unlawful. But we assumed in Whren that when an officer acts on pretext, at least that pretext would be the violation of an actual law. Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority. (“There is scarcely any law which does not admit of some ingenious doubt”). One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.
Of course, if the law enforcement system could not function without permitting mistakes of law to justify seizures, one could at least argue that permitting as much is a necessary evil. But I have not seen any persuasive argument that law enforcement will be unduly hampered by a rule that precludes consideration of mistakes of law in the reasonableness inquiry. After all, there is no indication that excluding an officer’s mistake of law from the reasonableness inquiry has created a problem for law enforcement in the overwhelming number of Circuits which have adopted that approach.
While I appreciate that the Court has endeavored to set some bounds on the types of mistakes of law that it thinks will qualify as reasonable, and while I think that the set of reasonable mistakes of law ought to be narrowly circumscribed if they are to be countenanced at all, I am not at all convinced that the Court has done so in a clear way. It seems to me that the difference between qualified immunity’s reasonableness standard—which the Court insists without elaboration does not apply here—and the Court’s conception of reasonableness in this context—which remains undefined—will prove murky in application. See ante, at 11. I fear the Court’s unwillingness to sketch a fuller view of what makes a mistake of law reasonable only presages the likely difficulty that courts will have applying the Court’s decision in this case.
* * *
To my mind, the more administrable approach—and the one more consistent with our precedents and principles—would be to hold that an officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment. I respectfully dissent.
The second-to-last paragraph seems to be directed at the Kagan/Ginsburg concurrence, which urges that the holding be applied narrowly. I am not at all optimistic that this is how lower courts will in fact apply the holding in this way. It seems more likely that the case will be used to give more and more leeway to the police despite the paucity of evidence that legitimate law-enforcement objectives are being served. I also note that Scalia’s stated preference for clear, applicable rules has once again been trumped by the pot-smoking hippie exception to his various alleged principles.
Thank you Ted Cruz:
Over the weekend Sen. Ted Cruz (R-TX) went to battle with Democrats, but his gambit backfired and ironically gave Senate Majority Leader Harry Reid (D-NV) and President Barack Obama an unexpected Christmas gift.
It began on Friday evening, when Reid and Senate Minority Leader Mitch McConnell (R-KY) were close to securing an agreement to quickly vote on the $1.1 trillion “CRomnibus” spending bill to avert a government shutdown. Cruz, along with Sen. Mike Lee (R-UT), blindsided Republican leaders by objecting and dragging out the process as they demanded a vote to defund Obama’s executive actions on immigration.
What Cruz didn’t count on was Reid instead seizing on the occasion — which forced the Senate to stay in session for procedural votes — to move forward with starting the confirmation vote clock on a whopping 24 Obama nominations that otherwise might have been jettisoned. The Texan’s tactic angered numerous Republican colleagues.
“I think most Republicans think that Christmas came early for Democrats,” Sen. Lindsey Graham (R-SC) said, according to Roll Call, blaming Cruz. “I haven’t seen Harry smile this much in years, and I didn’t particularly like it.”
I’ve said before that I wished more movement conservatives shared the bizarre fetish for third parties that some people on the left have, which would produce a much better political world. But at least Cruz and Lee seem to be bringing some of this strategic illogic to legislative tactics.
Of course, there’s a bigger related story — namely, the effects of the postmature decision to end the filibuster for judicial nominees:
If there’s one thing from 2014 that will define President Barack Obama’s legacy after he’s left the White House, it’s the number of lifetime judges he put on the federal bench.
In its final act of the year, the Senate blew through a dozen U.S. district court nominees on Tuesday night. That puts Obama at a whopping 89 district court and circuit court confirmations for the year, and means he’ll wrap up his sixth year in office with a grand total of 305 district court and circuit court confirmations — a tally that puts him well beyond where his predecessors were by this point in their presidencies.
President George W. Bush confirmed just 32 district court and circuit court judges during his sixth year in office, according to data provided by Alliance for Justice, a progressive advocacy group focused on the federal judiciary. President Bill Clinton confirmed 65 judges in his sixth year. In total, Bush confirmed 256 district and circuit court nominees after six years in office, Clinton confirmed 302, and President Ronald Reagan confirmed 295. Those numbers include a handful of Court of International Trade confirmations.
Senate filibuster reform played a major role in Obama’s spike in judicial confirmations this year. Democrats changed the rules last year to require a simple majority, or 51 votes, instead of 60 votes to advance most judicial nominees. They made the change in response to Republicans abusing the filibuster rule to block several of Obama’s nominees — even noncontroversial picks.
And tying the two together, as Bernstein points out this was made possible by a much broader group of Republicans engaging in Cruz-style tactics that managed the enormously difficult task of convincing even Pat Leahy that the filibuster for most judicial and executive branch nominees had to go. It’s not quite the same thing — thinking that Senate Democrats had no breaking point at all was an understandable mistake — but Republican overreaching consistently played into Reid’s hands for the last two years.
djw has been on this for a while, but as a supplement David Roberts has an excellent summary of Seattle’s monumentally stupid tunnel project. Whenever you choose an option that is by far the 1)riskiest, 2)most expensive, and 3)least potentially useful of the available options, you might as well go all the way and make Michael Brown in charge of all infrastructure spending for the state.
“Wherever They’s A Fight to Defend the Preposterous Arguments of People Responsible for Arbitrary Detention And Torture, I’ll Be There”
Shorter Ann Althouse: “That Dick Cheney was so tough and steadfast and dreamy when he defended his administration’s policy of torturing people, including the innocent. And you betcha the
sexual assault rectal dehydration and feeding probably had a legitimate medical purpose, just as Jose Padilla may well have been tortured to stop him from blinking signals to the many people watching him being taken to the denitist at Gitmo.”
As a desperately needed chaser, Chait has a good summary of the various ways Cheney has defended torture now that it’s even harder to pretend that it didn’t happen. My guess is that #1 — by definition, it’s not torture if the right Americans do it to the wrong paper — will be the dominant theme. It’s sad and outrageous that apologias for gross violations of human rights that really should be confined to eighth-rate webcomics will persuade many people, but we are living in a polity in which Dick Cheney could be part of a winning presidential ticket twice.
Kindly old Condi Rice:
Condoleezza Rice gave permission for the CIA to use waterboarding techniques on the alleged al-Qaida terrorist Abu Zubaydah as early as July 2002, the first known official approval for the technique, according to a report released by the Senate intelligence committee yesterday.
The revelation indicates that Rice, who at the time was national security adviser and went on to be secretary of state, played a greater role than she admitted in written testimony last autumn.
The committee’s narrative report (pdf) also shows that dissenting legal views about the interrogation methods were brushed aside repeatedly. The mood within the Bush administration at the time is caught in a handwritten note attached to a December 2002 memo from Donald Rumsfeld, the then defence secretary, on the use of stress positions. “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” he asked.
In conclusion, the real villains here are people who object to Rice being given huge checks and ornamental degrees to read platitudes at graduation events.
The C.I.A. tortured its own informants. And it tortured innocent people because of bad information obtained through torture:
The Senate Democratic staff members who wrote the 6,000-page report counted 119 prisoners who had been in C.I.A. custody. Of those, the report found that 26 were either described in the agency’s own documents as mistakenly detained, or released and given money, evidence of the same thing.
Among the others mistakenly held for periods of months or years, according to the report, were an “intellectually challenged” man held by the C.I.A. solely to pressure a family member to provide information; two people who were former C.I.A. informants; and two brothers who were falsely linked to Al Qaeda by Khalid Shaikh Mohammed, the 9/11 planner, who “fabricated” the information after being waterboarded 183 times.
In addition, the report says, “C.I.A. records provide insufficient information to justify the detention of many other detainees.”
Admittedly, the findings that an arbitrary, unaccountable torture regime was a human rights catastrophe that was useless or counterproductive in protecting national security are very, very partisan.
Look who’s back to defend the indefensible — Mr. John Yoo:
As a member of the Justice Department’s Office of Legal Counsel at the time of the 9/11 attacks, I thought that the CIA’s proposed interrogation methods were within the bounds of the law—just barely. They did not inflict serious, long-term pain or suffering, as prohibited by the federal statute banning torture. We realized then that waterboarding came closest to the line. But the fact that the U.S. military has used it to train thousands of U.S. airmen, officers, and soldiers without harm indicated that it didn’t constitute torture. Limiting tough interrogation methods only to al Qaeda leaders thought to have actionable information, during a time when the nation was under attack, further underscored the measured, narrow nature of President Bush’s decision.
This defense of waterboarding has always been specious on multiple levels. First of all, there’s the obvious problem of consent, a concept that seems to consistently elude conservatives. The fact that it’s used in training to allow military personell to resist torture is…not a good argument that it’s not torture. It is, in fact, torture.
All this aside, the Senate’s Report renders this focus on waterboarding largely beside the point:
The Bush administration’s supporters, operating under the assumption that its most brutal “enhanced interrogation technique” was waterboarding, spent much of the past decade defending this singular practice. Waterboarding did not amount to torture, they insisted, because Navy SEALS allegedly undergo the same treatment as part of their training. Anyway, it happened just a handful of times. Marc Thiessen, the Bush administration’s torture point man, later insisted, “We waterboarded in the CIA—the CIA waterboarded three terrorists. Just three.”
The torture regimen turns out to have been carried out on a vastly broader and more depraved scale than the administration’s defenders, or even its critics, ever imagined. The Senate Intelligence Committee’s report on CIA torture, released this week, describes practices few conservative politicians or intellectuals had prepared themselves to justify. Men were shackled to walls or ceilings for days, in diapers, locked in coffins, rectally violated, subject to days of sleep deprivation, beaten, and (in one instance) murdered. Several intelligence staffers reported being traumatized by the experience.
At no point did Cheney even approach a cursory answer to questions like: How did he know that those subjected to these techniques were, in fact, terrorists? Did some elaborate judicial process exist that contained even stronger safeguards against false conviction than the imperfect American legal system? How could American intelligence staffers, dropped into foreign lands, reliably pluck out the guilty while sparing the innocent?
As we now know, they could not. Twenty-six of the 119 detainees turned out to be innocent. One of them was a Pakistani or Afghan man named Janat Gul. In July 2004, the CIA seized Gul, acting on a tip from local informants who claimed he knew of a terror plot. His interrogators subjected him to sleep deprivation, slammed him into walls, and forced him to stand for as long as 47 hours in a row until he suffered hallucinations that he could see and hear his wife and children. He begged to be killed. Eventually, the informant who fingered Gul admitted to fabricating his story.
The entirely predictable consequence of ends-justifies-the-means reasoning that is not only hideously immoral but fails even on its own terms.
In conclusion, I turn things over to Dean Chemerinsky:
Torture is a crime, a violation of the Federal Torture Act. Those who engaged in the torture documented in such exhaustive detail in the Senate Intelligence Committee’s torture report should be prosecuted, and those who conspired in that torture should also be prosecuted. They include UC Berkeley law professor John Yoo, says Erwin Chemerinsky, Dean of the Law School at the University of California Irvine.
Yoo was co-author of the infamous “torture memo” of 2002, when he was Deputy Assistant U.S. Attorney General in the Office of Legal Counsel of the Bush Justice Department. In the memo he declared that—in the words of Jane Mayer in her book The Dark Side, “cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.”
Yoo’s memo “directly led to the torture policy that resulted,” Chemerinsky said in an interview, citing Mayer’s evidence. “That’s being part of a conspiracy to violate a federal statute. Someone isn’t excused from criminal liability just because they work for the federal government.”
The Federal Torture Act defines torture broadly, as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control.” The penalty for violating the Torture Act is imprisonment “for not more than 20 years.”
Most important for the case of John Yoo, the Federal Torture Act specifically includes conspiracy, stating that “A person who conspires to commit an offense under this section shall be subject to the same penalties . . . as the penalties prescribed for the offense.” That means Yoo could be sentenced to up to 20 years in prison if found guilty.
“I think he should be,” Chemerinsky said. “All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage? How else do we deter it in the future—except by criminal prosecutions?”
It won’t happen – but it should.
Shorter Verbatim Charles Murray: ” If you are drunk or high, to what degree can you say you are a victim when something bad happens to you? A question to take seriously.”
I especially like the tell of the last sentence — evidently, if it were actually a question worthy of serious consideration, it would be unnecessary to point this out. I’m pretty confident that had Murray been mugged and assaulted on his way out of this lunch he’d figure out the answer pretty quickly.
And, yes, it’s worth considering the amount of money and effort that has gone into presenting Murray as a serious intellectual.
My epic column on the various terrible arguments about the ACA being a mistake advanced by Democratic public officials is up. (Remarkably, the Harkin comments seem to be getting renewed attention this week by people determined to demonstrate that the “Obama could have gotten Congress to nationalize the health insurance industry but didn’t. even. try! is, sadly, not a strawman.) The brutal truth is that good policy has never been a guarantee of good electoral results:
Again, it’s worth putting things in historical perspective. The problem with waiting for the perfect, risk-free time to pass major reform legislation is that there’s never a perfect time. There have been three major periods of progressive reform legislation in Congress between the Civil War and 2008. (The fact that there have been only three should give pause to those who think that Obama, Reid, and Nancy Pelosi are worthless sellouts because they failed to completely transform the American political economy in Obama’s first two years.) In 1966, Great Society Democrats lost 47 seats in the House and three in the Senate, a preview of the crack-up of the Democratic coalition that would (with a detour created by Watergate) lead to the election of Ronald Reagan in 1980. In 1938, New Deal Democrats lost 72 seats in the House and seven in the Senate, and this tally doesn’t account for the failure of FDR’s efforts to defeat anti-New Deal Democrats in the primaries. In 1874, the Reconstruction-era Republicans lost 93 (out of 293) seats in the House and a net of seven seats in the Senate, effectively ending Reconstruction.
Does this mean that Lyndon Johnson shouldn’t have signed the Civil Rights Act? That FDR should have waited until he didn’t need Southern segregationists to pass New Deal legislation? That Republicans should have nominated Andrew Johnson rather than Ulysses S. Grant in 1868? Of course not.
The perfect response to these kind of arguments was made by Pelosi: “We come here to do a job, not keep a job. There are more than 14 million reasons why that’s wrong.” This is exactly right. The window for progressive reform in the United States is always narrow and treacherous — you get the best you can get when you have the chance. The unpopularity of the greatest progressive achievement passed by Congress in nearly five decades is unfortunate, but misguided Monday-morning quarterbacking isn’t the right response.
There was an additional discussion of recent results that got cut because the piece had already exceeded the usual limits, but to be clear I’m not advancing a completely deterministic or structural theory of electoral outcomes. Choices matter at the margins, and in 2010 in particular the Democrats performed to towards the bad end of the plausible spectrum of results. But there was no politically viable course of action that could have been worth a swing of 50 House seats in 2010 or saved the Senate in 2014. The federal elections that were close enough to be affected by legislative choices since the passage of the ACA, the Democrats won.
There is a dark side to the historical perspective — we don’t know what will happen to the ACA. It might not only endure but be eventually built on and further improved, like most of the central programs of the New Deal. It might at least hang in there, like most of the key programs of the Great Society. Or conservatives in the judiciary, hostile statehouses, and eventually Congress might roll it back as happened with Reconstruction. The fight is far from over. But the solution is not to wait for the perfect circumstances, because they don’t exist.
Robert Wayne Hosley was executed Tuesday night:
Holsey was represented at his murder trial by an alcoholic lawyer who was under investigation at the time for stealing from a client and who drank a quart of vodka every night of the trial.
He was sentenced to death for the 1995 murder of a police officer. The Georgia supreme court refused to stay the execution and the US supreme court also declined to intervene.
Even in a capital system that has seen its fair share of incompetent and negligent legal representation, the story of Holsey’s 1997 trial stands out as particularly egregious. His attorney, Andy Prince, had a history of heavy drinking since the age of 14.
Every night during the trial he drank the equivalent of more than 20 shots of vodka. He was also under police investigation at the time for having stolen more than $100,000 from a client – a theft for which he was convicted soon after Holsey’s trial ended, sentenced to 10 years in prison and disbarred from practising the law.
As a further indication of his mind not being entirely focused on Holsey’s life-and-death legal struggle, shortly before trial Price was arrested for disorderly conduct and accused of threatening to shoot three black neighbours to whom he was shouting racial slurs. Price was white and his capital client defendant black.
Holsey’s current lawyer, Brian Kammer, has argued that Price’s alcohol-sodden incompetence was not merely academic – it effectively put Holsey on death row. A key piece of information about Holsey, that should have been emphasised at the sentencing phase of his trial, was that he was intellectually disabled with a level of functioning equivalent to a nine-year-old.
Why should a little thing like the lack of effective counsel get in the way of a good execution?