Couple Books

After not really getting into a fictional account of Stalin's daughter defecting to the U.S., my second "grab and go" NYPL pick-up worked well.

It was an autobiography by Jill Wine-Banks (then in her first unhappy marriage) covering her time as a "Watergate Girl." We get an inside view along with a bit of juicy personal tidbits, including an affair. She tosses in a bit about one of her colleagues thought to have a drinking problem that came off as questionable. OTOH, though it is referenced in a photo and the notes, her penchant for pins is not discussed. Well written, brisk read, though one is depressed at an investigation with actual prosecutions and executives realizing certain limits.

I re-read the Pulitzer Prize winning Original Meanings [recall that Christmas book], which was pretty interesting, but at times a tad tedious. His basic attempt here was to look at it as a historian though the final pages suggest its use as a judicial practice is dubious (if Madison can't apply it that well ...). If it was unclear in the 1790s, when its use was so recent, application in 2020 is really dubious. History as a whole, including the beginnings, should be used with other interpretative devices. A few years later, the author challenged the individual rights view of the 2A (or rather, to be precise, one form of it) based on history.

"The Reclamation of Torture"

A good discussion, by a lawyer of a victim, including how the past tense makes it easier. He does welcome being open but not half-measures:

To acknowledge that we tortured people in our custody is all to the good. Indeed, we should do more than acknowledge it; we should make a careful and complete accounting, and if the Senate report is ever released, we may go far toward precisely that. But to imagine that all this was the product of a past that bears no connection to the present is foolish. Worse, if we reclaim torture but ignore the public institutions and political assumptions that led to this behavior, we are willfully ignorant. And if we fail to see that they are with us still, in surveillance that accepts no limit, drones that observe no boundaries, and a war that cannot end, we are truly blind.

I agree it is easy to say "it's all in the past" but do welcome use of the "t" word, which wasn't used in part because of its moral and legal imagery. Some was like "just can't figure out where the line is!" and like those who make "marriage" small (just to make children the old fashioned way!), wanted to cheapen and downplay something that horrified for centuries. Only something akin to the rack would be clear enough for them, though there were cases of people hung up and suffering something not too far from that. Basically, "torture" is something "illegal" that wasn't done (or now "done" but "what is past is past").  The present matters too. 

It is all to the good to call Obama, e.g., out for making excuses and ignoring treaty obligations, especially if blame is shared for society in general who share the sentiment. The buck stops with him but along with past wrongs like slavery or racial segregation, singling out him at some point misleads.  There is no realistic chance he is going to put things on the line and in effect say that Bush and Cheney should be in the dock. The President is not some savior who is going to jump far outside of the public on this subject though it would be nice if he did. And, I think it somewhat unfair (only somewhat -- really, the comments of a few strongly denouncing him doesn't cancel out the normal line which except for now and then ignores it) to single out only one part of President Obama's remarks.  POTUS said we "tortured" and “we did some things that were wrong." The past tense is noted, but even that is too much for some people.  He didn't say it was justified because of 9/11.  It was "wrong" and it was "torture."  This is notable though you know ... FERGUSON.

That is the bare minimum necessary to reduce mistreatment, including torture, in the future.  You need to say it is wrong -- not too long ago, the official line was that it was right and saying waterboarding was illegal was just so hard.  Also, the Senate report is notable in itself -- it might not seem like much, but these investigations are official accounts that put on record what happened. It's sort of like bashing the MSM and using them as source material.  Again, it isn't enough, but it is part of the bare minimum. It also provides an oversight role for the legislature, members of whom will continue to feel an obligation or at least right to see what is going on at least to some degree. This too will on some level serve as a check.

It is all very depressing and on some level what is done seems so trivial, even when it takes a lot of work and a bit of courage to do them. Thanks for those who fight the good fight, present tense.

Two "why is this so hard" comment debates

I put aside someone telling me he hopes Obama will lock me up to rot in jail because I don't think Lincoln was a "tyrant" for doing what the habeas clause implies he could do.  Well, not quite.  The person there -- who mixes intelligence with troll online -- does a standard thing. Flails about, sneering at me, but doesn't really try to specifically address what I take time to say.  This happens from time to time -- I take the time to make an argument, which might be wrong, but get dismissive replies which simply do not wish to seriously engage me. This annoys and depresses me though I have that "Someone is wrong on the Internet" comic with a little "Not Role Model" personal reminder on my wall. 

One comment was alluded to earlier, part of a thread involving bestiality (the main post's author has a low batting average and the effort -- from votes of comments apparently isn't just a joke -- is par for the course). The nature of the post, which was a jokey bit of confusion, didn't bode well, I admit.  One of my comments noted that I think lack of consent is a factor to justify bestiality bans. A person who generally I respect thought this silly since animals have no "legal consent."

I didn't say they had "legal" consent. I said their inability of consent is one reason we have bestiality bans.  Did add that some animals having some will, some ability to "consent" (which was admitted as a sensible explanation, if tossing in some philosophical verbiage to confuse things)  underlines the point. We respect that Fluffy, e.g., has the power (if not the legal right) to consent to certain things, so are concerned about her possible wishes and desires when determining proper animal welfare laws.  Like a five year old child, animals don't have "legal consent," but lack of consent (and some will that warrants concern) matters.

Why is this difficult?  The same blogger led to another issue, this from one of those commenters that I know does not see things my way in a fashion that I repeatedly think misses the point while finding me just clueless in the process.  So, I had some fair warning, but again, the clueless nature of the comment annoys and saddens me.  The post was one of those Israel ones at Volokh Conspiracy from one of the somewhat kneejerk Israel defenders.  So, I questioned if there was a film there that put the Nativity story in a Palestinian context.

The reply wondered if I wanted one where the couple was expelled for being illegal settlers or something. I thought this sort of missed the point and didn't quite follow the original.  The original had Mary/Joseph flee to Egypt to avoid Herod's son. So, I explained something like that but with new heavies would be a more direct parallel. I also explained (twice, after someone noted "huh" -- red flag emotional aside alert -- it seemed I was trying to promote an anti-Jewish film here)  that the overall story would suggest altering some things given things are different today. For instance, the Jews control Israel.  Jews wouldn't be lowly figures in the same way.  This led the person to wonder if I wanted Mary/Joseph to be serial killers, since they too would be against the PTB.  Seriously?

I get some replies like this online -- are these people even trying to understand what I'm saying?  The person actually said "by my logic" the serial killer duo would make sense.  This reminds me of another comment in another thread that assumed my link to a website explaining the "five non-negotiable" things for some Catholics (spoiler: SSM included) was my argument, perhaps because the link was to "St. Joseph" or something or other.  I have visions of the SNL character saying "never mind."

But, one thing that rarely occurs with many of these people is admitting error. It occurs a few times, to be fair, but repeatedly they lash out quite badly and even when called upon it, they don't admit error. They don't even say "oh, I see what you are trying to say, but I disagree" etc.  At some point, I realize one should not stress out about that. It's just someone online. But, they are not merely that -- they reflect a certain breed of people. Also, it is just rude and not respectful. Also, serious debate requires more than that -- it requires actually listening and trying to seriously engage people, including some with whom you strongly disagree.

I don't always succeed, but my basic philosophy is try to respect the people I argue with, even those who have views that I find wrong or even offensive. Some repeatedly just don't make a serious effort and at some point, it is best to ignore them.  Given my tendencies to want to speak out online, that is not always easy.  It helps when you can delete the comment -- sort of like writing a letter that you don't send.  And, sometimes, I expect more out of the people, who seem to overall to be serious people.

Still, take the person cited at the start. He is clearly very intelligent and has wrote law articles and works as a lawyer. But, for whatever reason, especially on certain subjects (e.g., religion), he -- and the word is not one I like since it tends to be overused -- is something of a troll. He lets his id out and doesn't care to seriously reply to people. Other times he does, so it is not like he cannot. Not quite like a person at a sentencing blog who in real life is a serious lawyer job but spends much of the time ranting.  The Internet encourages this sort of thing -- anonymity and all that though it is also seen by those who go by their real name. A few real tools in the blogosphere. 

It can be so hard for various reasons. Sometimes, people just see things in a different way. It is hard to face such preconceived notions in a comment context -- the people often have limited time anyway, and are not there for long in depth debates anyhow.  Others just seem to have a hard time to even take the time to try to understand your p.o.v. Since this to me is not only helpful but good policy, this depresses me.  But, so be it, I guess.

"Challenging the Arguments of Bush-Obama ‘War on Terror’ Continuity"

Obama is far from ideal, but it is not just "new boss, same as old boss," [Comey/some overlap] one of those lines that pushes my buttons. Change requires knowing the breadth of the problem. BTW, props for ACS, the liberal answer to the Federalist Society.

NYT Obama Piece of Moment

Many things are depressing, same half true stuff raised each time mixed with the rightful, and it makes reading pretty tiresome. Small circle of topics lead the way here -- same sex marriage, PPACA and Obama's counter-terrorism (sometimes labeled "civil liberties" as if abortion rights etc. is not included there) policy seems to be up on the list. Some coverage of an extended look at Obama's "secret kill list" in the NYT continues the norm.

I made a few comments in two of those links and covered this stuff before.  Don't want to belabor the point, though didn't stop me in the past.  Don't want media articles, with various on the record and off the record sources, to be my primary source of the details though appreciate them all the same.  The Administration, as Jack Goldsmith and others who aren't a bunch of liberal pansies suggest, should release stuff like the legal memorandum (properly redacted) used to justify the killing of an American citizen (you know who I mean) though they had their guy give a speech summarizing things.  The latter suggests why I refuse to buy into the Glenn Greenwald (often with spittle) approach that Obama is useless here.

In an extensive piece Jo Becker and Scott Shane report for The New York Times that Obama has “preserved three major policies – rendition [where prisoners are sent to secretive sites to undergo harsh, often brutal interrogation], military commissions and indefinite detention – that have been targets of human rights groups since the 2001 terrorist attacks.”

The fact is that the Administration has drawn lines here and some of the concern is a result of super-majority efforts like AUMF 2001 (voted by Ron f-ing Paul et. al. -- though, strangely, I'm the only one who seems to know this, given his name keeps on popping up as this great libertarian)  that gives broad discretion.  And, take this quote. That isn't what "rendition" means. 

In law, rendition is a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place.

Extraordinary rendition or rendition without proper procedures and safeguards is the damn problem. But, you know, I'm just an "Obama lover" (more than one person called me that inane term).  Some want Obama to release those in Gitmo or give them civilian trials.  Congress doesn't want to fund the latter, and in various cases, military commissions are appropriate (if done properly).  As to indefinite detention. simply put, putting aside that Congress is hindering the process of detainees, there are a portion that there is in the real world simply no easy way to handle.  Regardless, you are allowed to detain people here until the conflict is over. It isn't over. If you want a damn limit, have Congress pass one.

But, the buck always stops on the person who actually is doing the most (if not enough) in the long run here.  Congress wanted to give him MORE power.  The ACS link quoted GG. Sigh:

Virtually every one of the most far-right neocon Bush officials – including Dick Cheney himself – has spent years now praising Obama for continuing their Terrorism policies which Obama the Senator and Presidential Candidate once so harshly denounced. Every leading GOP candidate except Ron Paul wildly praised Obama for killing U.S. citizen Anwar Awlaki without a shred of due process and for continuing to drop unaccountable bombs on multiple Muslim countries.

Right. That is, other than (see Rachel Maddow) they weren't out there (including father/daughter [not the lesbian one] Cheney) railing against Obama for being too soft.  He has it at both ends, I guess.   What policies are we talking about here? He tried to close GITMO. He tried to have civilian trials.  Obama was never some crystal pure civil libertarian, no matter how many times people put out that strawman.  He set up more rules, denied the "no limits" policy of Yoo/Cheney and so forth.  If Congress et. al. don't want to make him accountable, who's fault is it?  And, does a police who shoots a fleeing suspect within accepted rules have "not a shred of due process"?  Over and over again, b.s.

The tiresome thing is that the policy as a whole can't really be defended.  The problem is multi-fold but to me is largely a matter of policy as an expert quoted in the piece suggested.  It isn't, as Greenwald tweeted as if it was so horrible, that Axelrod is in on the decisions.  Are we not supposed to hope that public opinion serves as a check here?  That's inane.  Do you think politicians don't judge public reaction before they use military force?  Do you think Lincoln didn't?  Did he make public his "kill lists" aka the military targets that would kill Americans, at times civilians? 

LGM (linked above), at least not the tiresome knee-jerk duo, noted:

Jo Becker and Scott Shane’s extensive, extremely useful analysis is not entirely without flaws. There’s a strange bit of Green Laternism where Becker and Shane talk about how Holder and Hillary Clinton wanted to lobby Congress but Obama shut them down — with the implication that this might have made a difference — which is pretty silly. I’d listen to counterfactuals it if the bill passed by a vote or two, but the vote was 90-6; the idea that Clinton and Holder using the BULLY PULPIT could have shifted 54 votes is so implausible as to be self-refuting.

Anyways, there is a lot of power here and there should be more safeguards in place.  It's appreciated the media shines a light.

Meghan McCain

And Also: "The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward."

Meghan McCain is promoting her new book Dirty Sexy Politics as shown by recent appearances on Rachel Maddow [two segments on "The Interview"], Jon Stewart [after it covered a search for the next justice ... in Staten Island] and a write-up in the NYT. The article portrayed her as a cheery open-minded optimist:

Her goal for the book, she said, is to “inspire people who feel disconnected from the political process,” particularly people her own age. “I’m friends with people that probably would describe themselves as socialists and people that are much more conservative than I am,” she said. “I can always find a middle ground.” ...

“I’m pro-life, but I’m pro birth control. I am also pro being realistic about the kind of world we live in.” She supports marriage equality for gay Americans, she added, because, “I have friends who are gay, and I’d like to go to their weddings.”

She says she loves the Republican Party, self-tested herself and determined she was a 8 of 10 (support of cap/trade policy hurt ... must have been when her dad didn't support it, but who knows?) but is upset at the extremism of her party today. Not surprisingly, MM is glad her dad won the primary: "My father hasn’t changed. The media bias has." Some of the comments were not supportive on that point. After all, he shift to the right seemed rather apparent and on this subject, who is she to talk about bias? But, on the other hand, maybe he always was a "whatever gets me elected" hypocrite. I'm not sure that is what she meant though.

The Maddow interview was nice and all -- RM clearly likes her energy and so forth, and I can see why -- but it was not really totally honest. Yes, she admitted that she disagrees with her dad on DADT. But, if MM (she seems like someone who would have a nickname like that) is all for moderation and honesty, she has to be faced with basic questions in these interviews. The party isn't moderate now. Does she support various hard right, unmoderate (divisive) candidates that are running now? Is her loyalty to the party kneejerk on that front?

A true moderate, like um Lieberman (who she wanted to be McCain's v.p.), would be willing to vote for the other party if the alternative was lousy. And, what about being pro-life? What does "being realistic" mean? Does that mean she realistically (is it only that?) aware that it still must be a woman's choice? Pro-life or not? And, if the candidate is not so supportive on such basic things, would she be willing to vote for the other person? Where is her line?

I think she honestly is trying to be a voice for young Republicans and those interested in politics in general, who are socially liberal on many issues, but if Meghan McCain is going to kneejerk support Republican tools (or any such people) who want to force women to have children even if their mates and religious advisors agree that they need not or to amend the Constitution to bar same sex marriages, she's still sort of part of the problem.

She is lying to herself. She is no 8 of 10 as the party is now set up and if she wants to reform it, I'm supportive. But, that includes some tough love, and some bluntness that these interviews are likely to often avoid. When it comes to her own dad, it's somewhat okay to give her a pass. Who is totally unbiased about loved ones? But, in general, not so much.

I will try to read her book when it comes out and get back to you on it.

Abdulrahman Zeitoun et. al.

[Update: As expected, even in his flu weakened state, Glenn Greenwald has a post up about this and will add more later. And, he rubs it in about Obama. Fine. But, the alternative is still worse. People might need more to care about the next election, but that alone is a reason to care. No matter how aggravating it is. Not that I don't get the anger. Well deserved that. More commentary/background.]

Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ”

-- Mohamed v. Jeppensen Dataplan Inc. (dissenting opinion)

Zeitoun is an award winning book concerning a Syrian immigrant with a successful contracting business (and a native American convert for a wife) stays behind to keep an eye on things during Katrina and gets caught in a Kafka-esque nightmare (the last 1/3 of the book). A powerful page turner. An innocent man, trusted by many to protect their property, was seized with three others, not allowed a phone call and kept in prison for weeks while his wife started to believe he was dead.

This was the result of the anarchy in the midst of the storm, though it is hard to justify not finding some means to set up some sort of system where someone like him could not even have contact with the outside world for around three weeks. Even if he was guilty, which he was not, his treatment was cruel and unusual. A basic violation of rights. But, this for some is too much to expect. As the majority in a 6-5 ruling, overruling the panel regarding a civil suit to obtain some relief in a case of extraordinary rendition, just ruled in respect to the anti-American "state secrecy" doctrine in place now:

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

Somewhat different facts, same results -- for some people, when it comes to our basic values, actually enjoying them all is too much to ask. Yet another excuse is found, so that:

“To this date, not a single victim of the Bush administration’s torture program has had his day in court,”

As the dissent -- again it's 6-5 and the majority admits they are troubled by the result -- notes: "The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint." This is sham justice. It gives aid and comfort to those who say that President Obama (to be generous) in effect b.s. us when he said he would change Bush's policies. As Charlie Savage, who joined the NYT and is an expert in this field notes in the article, in rather harsh language:

The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

The absurdity of it all is underlined by the fact that the majority blocks even a chance for judicial relief, a chance to show the district judge that there is enough there without the secret evidence. Tying the district court's hands is unjust, but some middle ground might bring forth some semblance of a fair hearing. The majority however -- akin to raising the chance of a pardon to some wrongly accused -- counsels executive and/or legislative relief. If only! What do they think we are, Canada? This besides ignoring the proper role of the courts:

Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered [Maj. Op. at 13554], elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” [Maj. Op. at 13556], leaves to the legislative branch claims which the federal courts are better equipped to handle.

Given the shoddy basis* (with three no nonsense FDR appointees dissenting) of the start of all of this, it is not too surprising, sadly. This lawsuit shouldn't be occurring. A means should be present to obtain relief. If the U.S. government wants the shield of state secrets, there is a way to balance all those American values without sacrificing one or more. The most obvious is to provide fiscal relief to those wrongly treated. This is akin to use of wrongly seized evidence: pay the piper, if you want to play a wrongful tune. But, that's too much to ask. The majority claims this is met:

In September 2009, Attorney General Eric H. Holder Jr. issued a new policy about future invocations of the state-secrets power, requiring higher-level review before it could be invoked in a lawsuit and promising that it would never be used for the purpose of covering up illegal activity or preventing official embarrassment.

B.S.! What is this lawsuit if not a means to prevent such cover-up, to prevent injustice and un-American behavior from occurring once again? If the government wants to claim that the lawsuit is just about revealing secrets, pay the people the money and/or provide some means of reparation. Provide some relief. But, as with Maher Arar, it does not want to do this. Meanwhile, relief in the courts are repeatedly blocked. Promises that we will not do such things again are made, but the government continues to act in ways that are shameful.

[And More: As noted by a NYT op-ed today, the majority acted as it did "even though it is public knowledge that Jeppesen arranged the torture flights," ensuring us that this was a special case. But, I don't believe it, especially given the overuse of secrecy in the past. Why should I trust the an administration who promised change on the point and gave too much of the same? More "trust us" b.s., when "doubt us" is more appropriate, more American. More appropriate when the government has given us no very good reason to give them the benefit of the doubt. Give them a default judgment. Then, maybe.]

And, without safeguards, what about when a new regime comes into power? When the next 9/11 or Katrina will come? Who will be the next Abdulrahman Zeitoun to be lost in the system, to use a comparison found in the book, like a stray caught in a fishnet, a dolphin or other animal caught by mistake or basically an unfortunate victim of the process? Such as some civilian killed in a drone attack, who all too often are assumed to be somewhat guilty by many people anyhow?

It's all very depressing. I think the courts can manage here, but fine, let's say they cannot. The executive and legislature then should do something. Such is the appeal of the majority here. But, where's the true legislative reform of the state secrets doctrine that was in the works? The Obama Administration doesn't really want one, since it feels their hands will be tied too tightly. Yes, such is what occurs with checks and balances. The travesty is that such things underline how moderate Obama is overall, push comes to shove, such moderation these days supporting conservative things. But, not enough apparently: we need to make things worse!

And, if you aren't going to show any real desire to bring people to justice, provide fiscal reparations or even provide a full airing of what occurred ("let's look forward"), trusting them to take basic power away from the courts to secure justice. 6-5 splits also should go the way of liberty. If it is that close, what the majority allowed here should not be done. If you are so uncomfortable, one or more of the judges should have joined the minority, which again, didn't want to give away the store or anything. Finally, those who think Obama just did this as some sort of thirteen dimensional chess move to test it in court are really kidding themselves.

Can't ask for too much liberty in these times, I guess.

---

* Lest we forget, the original state secrets ruling -- discussed here -- had three dissents, the hard-nosed FDR appointees Black, Frankfurter and Jackson. They notably merely cited the decision below, one written in the midst of the Cold War. The opinion by Judge Maris in part noted:

The Government presses upon us the contrary conclusion of the Britich House of Lords in Duncan v. Cammell, Laird & Co., (1942) A.C. 624. The case is distinguishable in that the plans of the submarine Thetis there involved were obviously military secrets and the suit was between private parties. But we do not regard the case as controlling in any event. For whatever may be true in Great Britain 22 the Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision. 23 Nor is there any [**27] danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments. When Government documents are submitted to them in camera under a claim of privilege the judges may be depended upon to protect with the greatest of care the public interest in preventing the disclosure of matters which may fairly be characterized as privileged. 24 And if, as [*998] the Government asserts is sometimes the case, a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera.

Any superiority cited to the U.K. or Canada on these matters are a tad ironic these days. But, the sentiment holds true.

Supreme Court Watch

As noted, the end of the term cases are starting to be handed down. These continued some interesting match-ups including one where Stevens joined the conservatives to reject a two person quorum for NRLB hearings and discussion of "judicial takings" where one part of the decision was rejected by four justices (Stevens not taking part) including a Kennedy/Sotomayor concurrence. This desire of Scalia to cloud the waters (via a section only 1/2 the Court signed on to) makes his solo (not even Thomas joining) "typically exaggerating" concurrence in the text messaging case a tad bit hypocritical.

ONTARIO v. QUON dealt with a broad issue (workplace privacy and privacy over modern communication devices) by a narrow decision that managed to get eight votes with Scalia joining in some parts of it as well. This was done by not settling a major debate involving the proper test to apply for workplace privacy and assuming a reasonable expectation was there in this case, but the search was reasonable all the same. Scalia didn't like the asides that in effect seemed to him (reasonably) to hint what it did not actually hold.

Thus, a narrow case -- pagers given to governmental employees with messages examined to determine if the use was truly work related and done in a careful (even if a more privacy protecting way might have been possible) way -- provided hints:

Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U. S., at 715. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

The "self-expression, even self-identification" tidbit is common sense (ask any teenager) and the free expression friend Kennedy is an unsurprising person to toss that in there. The shall we say "passive aggressive" nature of narrow decisions with suggestive dicta is not that uncommon and provides a signal of sorts to lower courts to be careful when deciding questions. Shades of Souter's commencement address, the opinion also was careful in dealing with developing technology, a move Scalia didn't like, but is a sensible "we might see this differently with more experience" path:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Such prudence and balancing is known as "judging," and along with some interesting justice splits, it underlines simplistic analysis of the job at hand is foolhardy. Something comparable might be considered with the refusal to hear Arar's lawsuit, Sotomayor not participating because of her involvement below. This means even if Kennedy joined the "liberals," a 4-4 uphold would be quite possible, five justices at least giving some succor to the lower court travesty as well. Not taking the case on some level is horrible, but on another, is it not perhaps appreciated?

---

* Wikipedia summarizes his case:

The suit charges that Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.

Further, Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court. Arar's claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.

More with some of the usual avoidance of the humanity involved for typical avoidance techniques here.

Italy Like Canada Shows How It Can Be Done

GG has a good account (and related video) of the independent Italian prosecution of a kidnapping [extraordinary rendition]. See also, Ghost Plane and how ignoring extradition treaties are of limited concern here. And, here as to terminology. Also, here. Things got worse, but they have been suspect for some time.

Anti-Surge Ho!

And Also: Last year, the Mets disposed of Kris Benson and eventually obtained two key starting pitchers in return. Benson had a predictable off/on year for the Orioles, but is hurt, so they needed another starter. And, what do you know -- they picked up suddenly persona non grata Steve Trachsel, who had a rather quick fall from grace ... his consistent averageness perhaps not fitting for the "new Mets." You served the team well Steve, if not at the very end ... good luck.

According to CNN, only one senator who's running for president has decided to blow off Saturday's surge resolution vote. Who? John McCain.

-- TPM

Ah, the little fake weasel. A few years back, I was given his book on courage. Worth wile reading, really, though this Iraq mess and his desire for the presidency has put a fork in his reputation for courage. Apparently, some things aren't "worth fighting for." After being treated like crap (along with his wife) in early 2004, he became Bush's little buddy in various key appearances. When Bush threw in a "signing statement" on McCain's anti-torture measure, Johnny made out as if it was a meaningless gesture. And, recently, JM disgustingly suggested that disagreeing with a failed policy would be taken as some sort of disrespect of the troops. I know of some online McCain supporter equally having a spine of spaghetti.

Said "respectable sort" -- full of above the fray wisdom and wisdom -- decided party was what mattered. So, he voted for Bush in 2004. Now, I don't take him seriously. Such people are in the same category of those who think raising (Bill) Clinton -- like a five-year-old child -- every time a challenge is made to the current President -- rather annoying, sometimes hard to ignore, but not worthy of our respect. The same applies to Joey Lieberman (Holier Than Thou-CT) who thinks a Senate vote in response to reason, public opinion, and sanity will lead to a "constitutional crisis":

Whatever our differences here in this chamber about this war, let us never forget the values of freedom and democracy that unite us and for which our troops have given and today give the last full measure of their devotion.

Yes, this includes those from Connecticut, who might think once someone is defeated in a primary that said person would actually do the decent thing and go away. At least, if the alternative was not to become the default Bush Republican candidate, the 10% who actually voted for the person with a "R" next to his name about the percentage of the party that currently has a spine. See, for instance, the number of House Republicans that voted for the anti-surge measure. Apparently, JL fears the resolution will be the beginning of some real pressure to change failed war policy. Assumed congressional overreaching more of a "constitutional crisis" than actual failure and overreaching by the executive. But, do we expect anything less from a faux values man / neocon Bush loyalist?

When I heard only seventeen Republicans voted for a resolution that simply supports the troops but opposes the surge, I was a bit surprised. But, clearly party loyalty has trumped principle in the end. Still, I thought "independent" maverick Christopher Shays (CT) -- who barely won in November -- would surely be among the few. Guess not. As with efforts to block a vote in the Senate, tossing in a "screw Democrats" resolution in the mix ("reasonable" Republicans helping, a few then whining about the politics of it all ... blaming both leaders), this underlines why certain sorts think the party is worth a cup of warm spit, and is as worthy of our respect.

Meanwhile, in Europe [see also, Ghost Plane]:

An Italian judge today ordered the first trial involving the American program of kidnapping terror suspects on foreign soil, indicting 26 Americans, most of them C.I.A. agents, but also Italy’s former top spy.... But the indictment nonetheless marked a turning point in Europe, where anger is high at the secret American program of "extraordinary renditions" that whisked away terror suspects in contravention of the law after the Sept. 11, 2001, terror attacks.

Ever forward.