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Tag: "civil liberties"

Arkansas’ Anti-Tattoo Legislation

[ 159 ] August 26, 2013 |

I’ll preface this by saying that I’m a member of the 1%: the one percent of Americans under the age of 40 who remains without a tattoo. So while I have no personal stake in the issue, the Arkansas bill banning “untraditional” tattoos or body modifications, whatever that means, is completely ridiculous. It’s unenforceable, unconstitutional, and outrageous. It also makes Arkansas look like a bunch of reactionaries fighting against the hippies, stereotypes that the Natural State does not want to reinforce through grotesque legislation. While I’m real curious as to the future of this tattooing fad, in many ways it’s not too different from the fight against long hair on men that led to violations of civil liberties in the 60s and 70s.

Maybe I’ll go get a hammer and sickle tattooed on my face and then drive to Arkansas.


An Essay Only a White Person Could Write

[ 204 ] September 26, 2012 |

Connor Friedersdorf writes the kind of political essay I can’t see anyone but a privileged white person writing. Going as far as to nearly (but not quite he says!) compare President Obama to an apologist for slavery, he can’t stomach voting for Obama because of his policies in Pakistan, drones, etc.

Instead, he says we should vote for Gary Johnson since there’s a candidate who won’t do those things.

In a sense I respect it when people care so much about one issue that they can’t vote for any candidate who disagrees. On the other hand, Friedersdorf doesn’t seem to care one iota about the horrible economic and social policies a Romney administration would enact. He doesn’t seem to care at all about labor, abortion rights, gay rights, environmental policy, etc., etc. It’s all about drones, civil liberties, and such. And Obama has indeed sucked on those issues.

But given that Friedersdorf probably doesn’t have to worry much about his next paycheck or be concerned about having an unwanted fetus in his body, it’s a luxury for him to be a one-issue voter on this particular issue. It’s all too typical of a lot of angry left-wing white men from Glenn Greenwald on down who live privileged enough lives that they can find the one issue where there really aren’t any differences on the two parties and instead suggest alternatives that completely ignore the poor in this country, whether being Paul-curious to not voting to voting for a whacko like Gary Johnson. That doesn’t solve any problems and it goes back to the worthlessness of politics to make a point I talked about last week.

Great Moments in Supreme Court Police Statism

[ 22 ] April 3, 2012 |

In addition to the appalling substantive merits, what is particularly striking about yesterday’s a-strip-search-for-jaywalking-is-reasonable case is that the quality of argumentation was shoddy above and beyond the indefensibility of the holding. The justifications offered by Kennedy and Alito were so weak the mere existence of the opinions makes the country stupider.

There’s something about attempts to evade the Fourth Amendment that tends to produce opinions that involve justifications  that consist of nothing but non-sequiturs, implausible speculation, and stunning leaps of illogic. As it happens, today I was teaching Board of Ed v. Earls, which has the same effect on me that the reasoning in Planned Parenthood v. Casey has on Paul.

In Earls, the court extended an already unwise precedent permitting schools to engage in not only warrantless but suspicionless random drug testing of student athletes to apply to the warrantless but suspicionless random drug testing of any student involved in extracurricular activities. As Ginsburg noted in her dissent, this is transparently “perverse” and “capricious,” as it singles out for testing a group less likely to engage in drug use than students as a whole. But the majority opinion doesn’t get really funny until it tries to argue that students participating in extracurriculars don’t necessarily have greater expectations of privacy or face less dangers than student athletes. The whole argument is such arrant nonsense that one imagines Thomas and his clerks guffawing throughout the whole thing; indeed, on the basis of the opinion they should all perhaps all be subject to lifetime random drug testing for their own saftey, because the alternative to my assumption that they wrote the whole thing on acid is too frightening. (Perhaps your high school experience was different than mine, but I don’t recall the debate club or yearbook planning committee to involve ferquent physical dangers and communal undress.) As Ginsburg said:

Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all.

In fairness, Thomas is on the record as saying that constitutional rights don’t apply to public school students at all, so at least he’s consistent. What excuse the justices who at least nominally believe that the Bill of Rights still applies to state schools have I can’t tell you. Special brickbats to the embarrassing swing vote cast by Stephen Breyer, whose dissent yesterday should tell you how weak the state’s case was.

Strip Search Sammy Comes Through For Authoritarianism

[ 84 ] April 3, 2012 |

Our liberty-loving Supreme Court has once again decided to use the Federalist Society Constitution, the one with the word “suckers” in it that omits the Fourth Amendment. You can now be subjected to a not merely warrantless but suspicionless strip-search for being guilty of a minor traffic offense.

The opinions bring to mind Scalia, back when he seemed to be willing for enforce the Fourth Amendment once in a while, critiquing another Kennedy assault on the Bill of Rights: “all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true.”   Except that this would be too generous to Kennedy, since the justifications offered by Kennedy, Roberts, and Alito as far as I can tell contain nothing that is relevant.    For example, as Liptak notes, Breyer explains the kind of menaces to society who can now be humilated:

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

But wait — Kennedy has a response!

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

Well, first of all, so what? Did McVeigh have a semiautomatic rifle stored in his rectum? Would any there have been any threat to public safety if he couldn’t be strip-searched? But leaving that aside, the strip searches authorized by the Court weren’t done by the side of the road (although we may be headed in that direction soon.) Presumably, McVeigh was detained because after being pulled over for driving without license plates the authorities found that he was the suspect in a mass terrorist killing. So what this has to do with people detained for minor nonviolent offenses I haven’t the slightest idea. As I say at the linked post, the arguments offered by the majority opinions are all pretty much at this level of bare assertion and non-sequitur.

Needless to say, this case is even more infuriating when you consider last week’s oral argument. It should be obvious that the Supreme Court owes much less deference to the arbitrary actions of local officials than it does to legislation passed by the United States Congress, but the conservatives on this Supreme Court get it exactly backwards.

…UPDATE: “the kind of logic that can turn a democracy into a police state.” More from Balko and Digby.

Specious Religious Freedom Argument Rejected

[ 14 ] March 27, 2012 |

Good. The point that “This case is about the limits of the government’s ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them)” is particularly crucial.

The Construction of Legal Standards

[ 38 ] March 20, 2012 |

Fortunately, it seems now that there will at a minimum be a serious investigation into the killing of Trayvon Martin. Should Zimmerman not be prosecuted (assuming no additional facts exonerating him emerge), however, I argue that it’s not as simple as saying that the Florida self-defense law did it:

Still, it is important to note that this is not quite a case where a bad statute has compelled a tragically unjust result. To be sure, the Florida self-defense law is terrible. But, nonetheless, the language of the law requires that a perceived threat be “reasonable.” To put it mildly, it is far from self-evident that Zimmerman’s perception of threat of “death or great bodily harm” was reasonable. Given that 1) Martin was armed only with Skittles, 2) Zimmerman outweighed Martin by about 100 pounds, 3) when Zimmerman encountered Martin the former was in an SUV while the latter was on foot, 4) that Martin was not engaged in any criminal activity when Zimmerman stopped to accost him, and 5) the police specifically told Zimmerman not to engage with Martin, it seems clear that Zimmerman’s alleged fear for his life was presumptively unreasonable. Certainly, the police have the discretion to charge him under the language of the statute unless they know something they aren’t revealing. Some, but not all Florida judges have held that the statute grants immunity to killers like Zimmerman.

If Zimmerman gets away with killing Martin, it’s not just the statute that bears responsibility. It’s how Florida’s policemen, prosecutors, judges, and juries have constructed its ambiguous language.

Don’t get me wrong: the law is really terrible, and the bad consequences were entirely predictable. But, still, if George Zimmerman’s actions are construed as “reasonable” that’s a construction of various actors, not a requirement of the law itself.

Well, No Rush

[ 15 ] March 16, 2012 |

The technology exists to exonerate innocent people. But that doesn’t mean that states are using it effectively.

On the Holder Speech

[ 156 ] March 6, 2012 |

I recommend both Kevin and Adam.

The standards laid out for when a targeted killing can be justified are not, in themselves, unreasonable:

First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

But the problem, as Adam says, is that a great deal of the work is done by the term “imminent threat,” and Holder’s follow-up already indicates slippage:

But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “The Constitution does not require the president to delay action until some theoretical end stage of planning when the precise time, place, and manner of an attack become clear,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializes, not the possibility that the government might accidentally kill an innocent person.

And it’s precisely this potential for defining “imminent threat” down that makes the lack of oversight unacceptable. If the executive branch can’t demonstrate evidence that there is an “imminent threat” to some sort of independent body, there’s no reason to believe that those being targeted for killing in fact pose imminent threats, and the potential for abusing the gravest power the executive branch possesses remains. Without meaningful oversight, these standards are only as good as the administration applying them. And that’s just not nearly good enough.

Solitary Confinement, Its Effects, and Its Overuse

[ 20 ] March 5, 2012 |

This report by Susan Greene is a first-rate piece of work, and should be read in full. A key paragraph:

Among the misperceptions about solitary confinement is that it’s used only on the most violent inmates, and only for a few weeks or months. In fact, an estimated 80,000 Americans — many with no record of violence either inside or outside prison — are living in seclusion. They stay there for years, even decades. What this means, generally, is 23 hours a day in a cell the size of two queen-sized mattresses, with a single hour in an exercise cage, also alone. Some prisoners aren’t allowed visits or phone calls. Some have no TV or radio. Some never lay eyes on each other. And some go years without fresh air or sunlight.

Diluting Miranda

[ 26 ] February 22, 2012 |

The landmark criminal procedure decisions of the Warren Court have generally not been overruled, but this is somewhat misleading; in many cases, the precedents formally remain standing, but have been interpreted in ways that give them much less bite.

With Miranda v. Arizona, the dilution process continued yesterday. It’s rarely a good sign when you see Alito’s name on a majority opinion in a civil liberties case, and Howes v. Fields is no exception. Yesterday’s ruling concerned the admissibility of a confession made by a prisoner who was questioned by two sherrif’s deputies for more than five hours and while being held in prison. The prisoner did not have the assistance of counsel, was not given the Miranda warnings, and said more than once that he did not want to answer further questions. Seems a pretty clear violation of Miranda, right? Well, if so, you’re not Samuel Alito, whose opinion held that Fields was not actually “in custody” at the time and therefore not subject to the requirements of Miranda. While Ginsburg’s dissenting opinion agreed that the Court had not previously established that this kind of context constituted custody, as she points out the failure of the Court to establish this given the opportunity involves ignoring the standards set forth in Miranda:

Fields, serving time for disorderly conduct, was, of course, “i[n] custody,” but not “for purposes of Miranda,” the Court concludes. I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to “incommunicado interrogation . . . in a police-dominated atmosphere,” whether he was placed, against his will, in an inherently stressful situation, and whether his “freedom of action [was] curtailed in any significant way.” Those should be the key questions, and to each I would answer “Yes.”

As the Court acknowledges, Fields did not invite or consent to the interview. He was removed from his cell in the evening, taken to a conference room in the sheriff’s quarters, and questioned by two armed deputies long into the night and early morning. Ibid. He was not told at the outset that he had the right to decline to speak with the deputies. Ibid. Shut in with the armed officers, Fields felt “trapped.” Although told he could return to his cell if he did not want to cooperate, Fields believed the deputies “would not have allowed [him] to leave the room,” And with good reason. More than once, “he told the officers . . . he did not want to speak with them anymore.” He was given water, but not his evening medications. Yet the Court concludes that Fields was in “an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”

Critical to the Court’s judgment is “the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell.” Never mind the facts suggesting that Fields’s submission to the overnight interview was anything but voluntary. Was Fields “held for interrogation”? Brought to, and left alone with, the gun-bearing deputies, he surely was in my judgment.

It’s classic Roberts Court “minimalism,” in other words. The Court doesn’t overrule Miranda, but it does invent some irrelevant reasons not to apply it in particular context.

Ginsburg dissented for Breyer and Sotomayor but not Kagan, who joined the Alito’s opinion in full. As this blog may have mentioned on one or two occasions, Kagan isn’t awful but certainly represents a missed opportunity. “To the right of Breyer on a Fifth Amendment case” is not what you’re looking for given an unusually large Senate majority to work with.

…Glenn beat me to the point on Kagan.

In Defense of Reinhardt

[ 28 ] February 9, 2012 |

A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.

The Problem For Civil Libertarians

[ 149 ] February 9, 2012 |

Like Glenn, I’m dismayed by polling showing widespread support — including among Democrats and liberals — for arbitrary executive power in the “war on terror.” But I take somewhat different lessons from it. Glenn sees this as above all as evidence of tribalism — that liberals only oppose violations of civil liberties when a Republican is in the White House. While I’m sure that partisan considerations affect popular support for these actions at the margin, I think the primary issue is somewhat different and much more disturbing: namely, that civil liberties don’t just have a strong political constituency no matter who’s in the White House.

If this were primarily about tribalism, then one would expect Democrats to rally strongly around Obama when he took a position more civil libertarian than the status quo. But, to put it mildly, this didn’t happen. When Obama tried to close Gitmo, not only was this unpopular with the public, but the Senate vote blocking it was 90-6, not just some conservative Democrats collaborating with Republicans. A lot of blue-state senators, at a minimum, believed that preventing the president from closing Gitmo wouldn’t extract any political cost, and of course they were right. The expenditure of political capital to try to give Khalid Shaikh Mohammed a civilian trial is a similar story — unpopular with the public as a whole, and finding himself without support either in Congress or with politicians in New York (including the Democratic governor.)

It’s easy to forget this if you spend a lot of time online, but people strongly committed to civil liberties are a minority among liberals, let alone the population as a whole. This is the central reason why the number of modern presidents with good records on civil liberties is “none”: the lack of a constituency for civil liberties means that presidents can (within reason) only pay a political price for being too protective. Presidents can’t even count on the support of their own partisans when they try to protect the rights of unpopular minorities or individuals. This absolutely doesn’t mean that presidents don’t have substantial discretion and especially doesn’t mean that the actions of presidents that violate civil liberties shouldn’t be criticized — civil libertarians should do what they can — but this is the political landscape we’re dealing with.

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