Tricky Strip Search Case

Albert W. Florence was held for eight days in two counties on a civil contempt charge, even though he had paid the relevant fine.

In the process, he was strip-searched twice.

“Turn around,” he remembered being told while he stood naked before several guards and prisoners. “Squat and cough. Spread your cheeks.”

As discussed here (with the link to the NYT article), this case goes beyond the broad policy at issue.  As the advocate for the policy noted, on some level it seems reasonable to have a blanket policy regarding searches for those you put in general population at a prison.  He admitted that the person shouldn't have been arrested, surely not held for eight days.  But, that isn't the specific matter at hand here, nor the fact that race and other illegitimate factors will um "color" who is arrested and detained. 

But, maybe you have to deal with that reality, particularly after the Supreme Court (5-4, Souter and O'Connor in effect switching roles)  rejected a line where a mild traffic offense would not be subject to imprisonment (seizure).   If you are going to detain trivial offenders, who you shouldn't anyways, before you require them to strip in front of you and bend over to expose their genitals, have some sort of reasonable suspicion.  After all, assuming that just because they are being detained was controversial in the 1970s, the Supreme Court splitting on the issue 5-4 (Powell joining the dissenters on the point)  even after contact visits. 

Sotomayor and Alito, who in one fashion or the other actually dealt with prisoners in the tri-state area, were somewhat concerned about a per se rule given the trivial nature of some of the offenders caught up in the mix here.  And, as a matter of policy, some degree of reasonable suspicion was in place by federal and various state practice.  The petitioners wanted to draw a line at minor offenses, other offenses basically assumed to have suspicion.  The dissents in the cited case, admittedly dissents, would have gone even further, requiring some sort of individualized suspicion across the board.  But, for a person like this, especially since the state is allowed to view them in the shower or have medical personnel check them, there is little real reason to suspect contraband. 

Would someone picked up for some simple possession charge have drugs in their anus or a razor blade there?  There is always a fear that someone might, particularly perhaps a homeless person or some other sort who is picked up for a trivial offense but has something hidden for some reason.  A few justices noted there actually was not much evidence of this though.  But, it's a hard call -- the real problem really is that he shouldn't have been arrested and surely not kept that long.  Attacking this policy is really a sort of indirect means of addressing the real issue.  After all, this is a violation of privacy, just as drug testing is in a different fashion, but the eight days in prison probably was worse in the long run.

The case of a teenage girl being told to strip to her bra and panties because of suspicion she had prescription-strength ibuprofen pills on her person was a pretty easy case and even there the Supreme Court did not set in place a totally clear-cut rule.  The chance that five justices would find the policy here illegitimate is questionable though the opinion might set some guidelines that put some limits in place.  For instance, the prison's lawyer drew the line at contact searches -- that is, snapping on some gloves etc. would be quite different.  Some chance of one or more concurrences or possibly a partial dissent of some type.  But, a win is something of a long shot.

This is probably the best case so far for the general public to listen to, the link above providing text/audio matching.  Supreme Court transcript here with multiple audio platforms and a chance to download for later. 

Baseball Update

The Brewers had a "Burnett" moment, their iffy starter having a good game to make it a series at 2 all. Verlander made it through 7.1, the .1 a bit ill advised, but Detroit survived. 3-2, Texas.

Health Care and Abortion

The desire to deprive women of health care involving abortion as an option is yet another bugaboo in this country.

-- Health Care and Abortion

Yes. Unlike some representative said during the floor debate earlier today, abortion IS health care, particularly when women (or girls) are "confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other." You might not LIKE the choice to undergo this medical procedure, done by doctors to protect the health and well being of the patient. But, if it isn't "health care," what is it?

It is duly noted that the government is now (wrongly) allowed to discriminate by religious and moral belief and deny funding even to those who require an abortion to prevent various significant health concerns. At least admit what you are doing as you try to deprive needy individuals of protections in extreme cases or deny individual choices respecting health insurance. The type of emergency care at issue here covers the extreme cases even many strong pro-life types would admit are tricky situations. Likewise, many against abortion would realize that health plans include coverage of things they personally oppose.

It is a tad annoying that we are supposed to find it perfectly acceptable to use government money to pay for religious education because the overall plan is "neutral" and individual choice is involved without it being an Establishment Clause issue, in fact to do otherwise would violate the Free Exercise Clause, but individuals can't make their own health care choices in disfavored areas. Then, it is a problem because the government is paying for abortions. Not the individual by means of her own health care choices, such as those who decide to have a child in other cases. They are okay, Their moral and religious choices are acceptable. Thanks, Father GOP.

Abortion is a deeply personal choice that some people find immoral in various cases. But, it is a personal choice, just like most health choices are inherently personal on some level. The Hyde Amendment is bad policy, if not probably unconstitutional (just like a few states have found it to be pursuant to their own constitutions when the states deny funding selectively that way), but we are stuck with it for the moment. The Republicans will continue to try to make things worse.

The fact Obama has promised to veto this latest version even if it somehow managed to get through the Senate (it is not likely to) underlines (yet again) why it pays to have him as President.

RIP Frank Kameny

The federal government began to target homosexuals as "enemies of democracy" by labeling them a threat to national security. One of the many men and women who suffered from employment discrimination was Dr. Frank Kameny, a Harvard-educated astronomer and professor. In 1956, Kameny was terminated by the Army and barred from federal employment for several years following his alleged solicitation of sex from an undercover police officer. When Kameny unsuccessfully sued the federal government, the Supreme Court denied certiorari. The Court's failure to hear Kameny's case points to society's general fear at the time to hear, let alone debate about, potential civil or legal rights for gays.

-- "The Progress and Pitfalls of Lawrence v. Texas"

Frank Kameny, a great in the gay liberation movement, has just died. His motto was that if he and society clashed, he would examine the matter once, but if they still were in trouble, society is the one with a duty to change. Worked fairly well, up to a point. The case cited is somewhat interesting -- a look at the appellate ruling rests on neutral grounds. No reference to homosexuality per se. There is danger there, societal prejudices can be given a pass that way. But, such neutrality could eventually pay dividends, when truly honored.

Lawrence v. Texas rested on substantive due process with an equal protection gloss. I am re-reading a book on the Ninth Amendment, another way to look at the question. To quote a rare case of a Supreme Court opinion (not just a concurrence or a passing mention)* that honored it: "The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined." The principle has been repeatedly upheld in various ways from time to time. For instance, 1870s:

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

The book [Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have] argues that we should use Supreme Court precedent establishing rights or analogous rights, connections to specific constitutional guarantees, longstanding traditions, contemporary societal consensus, decisions by American lawmakers and judges, general American traditions and international norms to give meaning to them. As with the Second Amendment, there has been various scholarly discussion, this volume more geared to general audiences. Recommended.

---

* The reference is actually found in a plurality though Justice Brennan joined the famous Griswold concurrence (worked on by law clerk Stephen Breyer) and Marshall surely agreed with the sentiment too. The Casey (abortion) plurality also referenced the Ninth Amendment. Basically, the references give further backing to the use of substantive due process.

To remind:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Detroit 1-3

More rain delay. A sloppy sixth, missing some chances and their closer blowing it in the second inning of a tied game cost the Tigers a game they could have had. Cards got four in the first, but are hanging on 4-3 late. [And won. Dangerous, just like they got in back in '06.]

Getting Reyes Back

The Mets are trying to find a way to retain super free agent, José Reyes, but as suggested here, it might require some creativity to find a deal within the means of the team that meets with his approval.  Some "out of the box" suggestions:

#1 Change the name of the team to something that makes it sound like a new form of some other team’s name ala Anaheim Angels of Anaheim Formerly Known As Something or Other, tricking Reyes into thinking that he is signing for a team with a future.

#2 Sign him for a long contract, knowing his body won’t hold up that long, but use some form of foreign currency, like Lire, so that not only will it be something the team can afford, it might be close to what he actually is worth.

#3 Sign him part time, since he’s going to be injured or playing partial strength 1/3 of the year anyways.

#4 Sign him for what he’s worth, full time, in American dollars, but have a clause where he has to do gigs on the side, even when he’s injured. Figure out a way to make money off him a third way, after realizing he sings about as good as Murphy plays Second.

#5 Seeing how good the bullpen was on $10M, dispose of Pelfrey and everyone else possible, including a few expensive players by tossing in an Ike Davis or by some trickery (maybe Madoff can help?) and replacing them with scrubs worth 10M. The more expensive players will be busts or get injured at some point anyways. Money saved goes to pay Reyes.

#6 Sell souls to devil. Worked for the Cards this year.

#7 Point out what happened to Carl Crawford — does he really need that kind of headache, just for money?

#8 Try to stop him from laughing.

#9 Beg. It works on the subways. It’s good to have a gimmick or spiel. Perhaps, a song or dancing. Admittedly, many people trust some drunk on the street (with some amount of cause) with their money more than the current ownership.

#10 Include special perks like a second "Reyes" Apple that pops up whenever he hits a triple. Whenever he wants, he can have one turn at bat, get a bunt base hit and leave the game. Or, something.

A killjoy comment was made about the "humor" of overpaying someone whose talent is largely in his legs, which are due to break down, even as they do now periodically. This is a bit harsh -- see, e.g., his batting title -- but it is a telling point.

Health Care Law

Continues to be a major matter of speculation, including the possible timing of SC consideration.  I still think, given the main provision at issue won't go in effect before then, it should be decided after the 2012 elections.  If not, should hold the Tax Injunction Act so requires.

Detroit 1-2

Fister does it again.  With their ace in the mix, should escape Detroit at least only down 3-2.  Have a chance to make a series out of this.

Some Minimum Level of Party Loyalty? Nah.

"The things I support in this bill are outweighed by the things I can't support," Tester told reporters afterward.

Fine, asshole.  Don't filibuster the thing, vote against it on an up/down vote.  Don't filibuster your own party.  Thanks.

The Closer

There are so many forensics shows (including various locales) but I am not a big fan.  Saw Law & Order through various detectives, but stopped watching regularly about half-way through or so.  Saw NCIS recently -- a basic cable station aired it back-to-back (etc.) and it was an okay time waster, though a tad boring.  And, back in the day, I saw a few episodes of The Closer, maybe, but never go into it.  In the midst of its seventh, and last season (so it says), that changed.  It's my new thing. 

It's a fun show.  Kyra Sedgwick plays a Georgia girl brought by a former flame (and assistant chief) to "close" tough cases for the LAPD.  Turns out she was CIA trained (tidbit I caught when watching the First Season on DVD) and all, so she's wicked talented, though her people skills leave something to be desired.  This causes various problems in the department, though her team is on her side by the end of S1.  She is willing to break the rules (which is coming back to haunt her in the current story arc) to close those cases, such as leave people in harm's way.  In S1, she tricks a seventeen year old rapist/murderer (well, accident) to confess to his crimes against a Mexican national in a police station down there, his parents helping him to escape and him having no incentive to come back to the U.S.  Better than a few times when her actions led to the death of the murderers in question. 

She is also something of a nut -- she has an emotional side, a candy fetish and keeps mixing up the gender of her cat (turns out to be pregnant, but she likes him/her as a boy).  The cats bring in some amusing stuff, plus a touching episode or two.  Not a big one for appearance, favoring serviceable clothing (including sweaters)  and bright red lipstick. Hooks up again with a FBI agent she had worked with in the past, who conveniently seems to be connected to every other case she handles somehow.  They marry in the Fourth Season (the other one I have seen).  Well acted with generally good story lines.  Good opening with a distinctive beat. The continual theme of recording interviews etc. is good standard practice. 

Good cast.  Some familiar faces, including G.W. Bailey, who I first saw in a motor pool in Korea.  Gina Ravera left after the 4th Season, apparently not having much to do, though the role of another woman detective among a bunch of men (and only female semi-regular) was later filled by Mary McDonnell.  The supporting cast is key to enjoyable episode television, including various quirks and charms, and this one provides the goods.  This includes each having a certain role, including the technical nerd and the young somewhat uptight assistant, old cynical vet and so forth.  Some good guest stars, including -- look at that -- that is one of the assistants from Beakman's World!

Crime and overall drama ... The Closer does the trick. Oh well, about time for the second that does it for me, Body of Proof, also having various familiar faces. 

Supreme Court Justice Watch

Stevens continues to be busy off the Supreme Court.  How are the other active and semi-retired (Souter and O'Connor, especially O'Connor, still hearing lower court cases from time to time)  justices doing in such a context?  They all in some fashion, including speeches, seminars and other projects, find stuff to do.  O'Connor is the most busy, perhaps, serving on lower courts and promoting civics education.  Souter has voiced the importance of civics too (and history overall) and has been a bit more public in the last few years, including in a rightly praised Harvard commencement address that nicely criticized the critics of the "living Constitution" model. 

Scalia and Breyer just was in Congress to talk about what they do, each (even if Scalia doesn't like recording) often giving speeches or talking (Breyer has been on various media outlets) about their judicial philosophy.  Breyer wrote his own book a year or so ago, recommended, and still seems to be promoting it. Is the paperback out or something?  Scalia co-wrote a book on advocacy; he is celebrating his twenty-five years on the Court (unlike O'Connor, doubt it will be a sign of retirement).  Thomas wrote an autobiography and I recall that Sotomayor was in the process of writing one (or helping with an authorized version).  Online you can also find more than one Q&A she had in various fora.  She has said that she believes her involvement with the public at large is a major part of her work. 

C-SPAN also had remarks of others, including Kennedy, who a few years back had some seminars for young adults.  Roberts got a mention when he dissed law review articles; I was inspired to buy a four justice stamp set he announced a few years ago.  If you go to the Supreme Court's speech page, Ginsburg dominates, with a few by others sprinkled in.  I don't hear to much about Alito, though he was seen at a right wing event.  Kagan answered some questions at the Aspen Institute. 

And, Thomas will teach a seminar on constitutional law.  I have a couple volumes on my own view of constitutional matters among other musings around here and elsewhere.  They are about as aspirational (that is, as compared to the law in place now) as his version, though he has a bit more pull.  From the one or two times I saw video, he seems pretty comfortable with law students.  Does he show pics of his R.V.?   Stevens interestingly specifically rejects his views on certain subjects, suggesting how personnel plays such an important part in constitutional law.  After all, it is not as if Thomas is alone in his views on the subjects discussed, though again, how far he takes things is rather unique. 

They also are interpreting constitutional law. 

Thoughts on the Hosanna-Tabor Oral Argument

Oregon v. Smith inhibited religious exemption claims (and the reach of the Free Exercise Clause) but a case this term regarding the "ministerial exemption" promises to bring interesting statutory and 1A issues to the forefront.  A few thoughts here (comments).

Detroit 0-2

They got out of one late game bases loaded, no one out jam, but the guy who got hit to load them prevented them from getting out of it again.  Texas had 8.1 innings of scoreless relief. 

Some JPS Writings

Chapter on the justice he clerked for, Mr. Justice (1965).  Foreword to Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens.  Various speeches and articles.  A book review. And, Five Chiefs, on the chief justices he dealt with, an interesting read.

Columbus Day

Today's the day to note, celebrate, mourn or whatever that "brought the Americas into the forefront of Western attention," with special notice for Italians (we had a parade around here).  In this entry, I called it "Imperialism Day."  Truth in advertising?  Lot of that too.

DVD Update

Watching S1 of The Closer and I see Brenda cut corners (and worse) to "close" since the first few episodes.  For some reason, last two thirds of S1 of Once and Again is not at my library, so I will eventually have to buy the thing. But, with so much more to watch, no rush.

More Sports

Tampa was spanked, Jets are 2-3 and the Cards gave up six mid-game.  Cards did their job.  Don't really care what happens in NL.  Brewers bore me.  Should have gave it up in Game 5 a few days back.  GB and Detroit (football) due -- both doing very good.

Sports Update

NYG got a lot of breaks but karma knocked them out when they were about to go ahead.  Viks finally won, Carolina just lost (again) and the Colts blew a chance to finally win.  Miami (winless) had a bye.  No one noticed.  Detroit/Texas was rained out.  Eagles lost, Bills won.

Wisdom of Bucky

Cato Supreme Court Review and Top 1%

Cato Supreme Court Watch 2010-2011: Overall, some interesting, if nothing really big (sorta like the term), collection of essays. The pre-emption and Wal-Mart chapters were too technical for me. The latter is by an expert who wrote a book on class action, so it's more forgivable than the former, which is a pretty important issue about some important cases (like seatbelts and vaccines) that in a book supposedly for a general audience should have been able to be written better. I didn't agree with the Arizona cases, particularly the standing question (I admit, my side was weak on merits given current law). The Bond chapter was thin. The others were fairly interesting and often leaned correctly libertarian.

Top 1%: Chris Hayes is talking about this now and it calls to mind when Dean in '04 got in trouble about supporting too high taxes for the middle class, but when I asked the resident Slate fray expert (well mine; aka "run") about it, he noted his plan seemed to work out, which doesn't mean it stops it from being political unsellable. At least, that was the judgment of the Democrat decision makers.  I'm inclined to think that all this talk about "middle class tax cuts" can be taken too far, which Dilan Esper (another former frayster) once noted on his Twitter feed. If the fisc requires more money, just continuing tax cuts for the "rich" (especially given how high that is) is not the only problem.

And, when a guest talks about how those making between 250K and one million would feel a pinch if their taxes when up somewhat, well, we are going off the deep end here. Scalia with his nine kids might not be able to handle it, but come on. It is shocking how tax cuts and mismanagement screwed us so much and the fact that even raising taxes for millionaires is controversial when sound fiscal policy would mean (and push comes to shove, by cutting programs or whatever will mean) a lot more than that. Taxes that pay for the government, including avoiding the debts and other issues we now have because of bad fiscal policy.

Just talking about "middle class" and tax increases for the very rich won't do it. It is about all of us and progressive taxation does mean taxation, just a different amount pursuant to need and ability.  But, if making 750K is not "rich," I guess it changes things some.  Let's pretend.  How about those Mets in the NLCS?

More Rain, Same Net Result

Verlander pitched a bit more this time and they only had rain delays, not as suspended game, but Detroit lost again with their ace starting.  He gave up three runs, Detroit missed an opportunity after the rain to tie or go ahead, and the score held at 3-2.

"When Moralism Isn’t Moral"

Yes, he says, Bush’s waterboarding and Israel’s blockade amounted to abhorrent torture and illicit collective punishment; but the answer is not to drag either Bush or the Israelis before a war-crimes tribunal.

One abhorrent act of torture, criminal, a bunch, political.  Review is worthwhile but that doesn't quite fly, even if that is how things work.

Twelve Unlikely Heroes

Upfront, let me say that I received this book free from Book Sneeze in return of providing a review though no duty is present to provide a positive one to obtain said item.  It is just one person's opinion. 

Twelve Unlikely Heroes: How God Commissioned Unexpected People in the Bible and What He Wants to Do with You teaches how God ironically repeatedly uses weak, foolish, and broken people as models of his power, wisdom, and love.  The biblical figures discussed here include:

Joseph: a slave who saved his country and his family

Miriam: Moses' sister who helped that key biblical figure

Samson: an uncontrollable man whom God empowered and used

Jonathan: an heir to a throne he was willing to give up

Esther: the woman God used to spare the Jewish people

Mark: a coward who was restored and wrote the second gospel

Onesimus: a runaway slave who became a minister

and several more. 

It is in fact a third in a series (previous ones: Twelve Ordinary Men and Twelve Extraordinary Women) that discuss various biblical figures for the readers' personal advancement. The book adds historical and cultural backgrounds, which is helpful, since some biblical accounts (consider Onesimus, the subject of a short Pauline epistle) are relatively brief though we can imagine they are often written down only after oral traditions with much more detail and discussion was provided first.  Also, these are complex individuals -- consider Jonathan, who is the son of a rival of David, but they become close friends. The tragic nature of their relationship is worthy of contemplation and provides insights for many other such relationships.

It was a good book that brought alive various biblical figures.  Should be particularly helpful for bible study groups.  ****

J.K. Simmons Connection

Saw the very first episode of The Closer and Mr. Simmons has another topical connection -- For The Love of The Game, a lesser if still pleasant enough Costner sports film about a Detroit pitcher.

#2 and #3 seeds are pretty good too

Texas has home-field advantage after winning a franchise-record 96 games, including six in a row and 12 of 14 to end the regular season. That was just enough to finish one game ahead of the Tigers, who won 20 of 25 down the stretch.

#1 vs. #4 in the NL upcoming.

Release The Justification of the Al-awlaki Killing

And Also: This article suggests the many aspects of the PPACA, which again, goes far beyond the need of some to buy private insurance or (in a few years) pay a fiscal penalty collected by the IRS.  The provision is important, but solitary focus on it is misleading.

[Update: Charlie Savage wrote an article where anonymous people summarized what the memo said -- btw it actually referenced the shooting a fleeing suspect case I myself referenced, but no, I have not seen the memo.  The tidbit on the CIA is particularly interesting.  Let's cut this b.s. and have the actual memo released.  Seriously.

The article says it "was principally drafted by David Barron and Martin Lederman," two people who have written about the limits of executive power in the past, but for some reason no longer are working for the administration. Harold Koh also was critical of executive power in the past, while seeming to some to be more supportive of it now that he's inside.  So, who knows?]

Opinio Juris has been cited by me in the discussion of this matter (it's one of those things where the terminology is in dispute, so even what you call it is an issue).  It's a good blog that is "a forum for informed discussion and lively debate about international law and international relations" with various viewpoints, including one (who also blogs, for me too verbosely, at Volokh Conspiracy) that noted the Jack Goldsmith comment quoted below.  I note that Goldsmith spells the shall we say victim's name differently, which is probably not surprising since transliteration of foreign names is an inexact science.

[The blog has a good entry on the women who won the Nobel Peace prize this year with video provided.]

Another blog of "international politics" that I know about because of Dr. Charli Carpenter's (previously of Lawyers Drugs and Money; her replacement is sadly too much of a kneejerk sort for my tastes, adding to one already there -- I do not care for that sort of thing, even when they lean left) involvement.  I cited one of its members' preliminary reaction to the killing in one my posts on this issue and its stance can be stated by this addendum (the link is telling -- it supported "chasing" him, but noted that the "best way" was to capture him ... query if the best way of doing things are realistically likely to happen these days):

Will McCants has linked to an article at Foreign Policy from November 2010 which argues the case for taking out Awlaki. I still have mixed feelings about this. I will feel better if there is a case/dossier of evidence that can be brought forward - and I still maintain that this case should have been made before striking out at him.

I share that sentiment though the article does not touch upon the legality of the killing.  As to "this case," again Jack Goldsmith of The Terror Presidency fame (conservative foreign policy done prudentially):

A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people.  Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike.  It could also describe the limits of presidential power in this context.

Sure thing.  One thing covered by various people here is the charade that we can't do this because it is all "covert" and everything, also used in "state secrecy" cases (the quotes are at least partially warranted) to block civil litigation even when the target of the suits are far from really secret. A reference (Opinio Juris) is made to a joking comment (kidding on the square) that the drone program is secret except to the degree it's reported (often via leak) in the press. Ha ha.  As a comment notes, the dead victims of said program aren't quite as amused by the chuckles as a result of an Administration official being asked about such things.  I noted that the overall justification of the killing has been discussed and the Administration is not shy about basically bragging about their success here, so a properly redacted full press release is fully appropriate.

I (and others) have argued that his citizenship provided him with additional protection, but looking at the amendments cited, only two of them are (arguably) limited to that class ("the people" ... and again, if it actually IS limited to them is quite debatable, equal protection concerns making the matter somewhat moot).  As noted in the more liberal leaning IntLawGrrls blog, the Fifth Amendment speaks of "persons."  See also, habeas corpus protections and Rasul v. Bush et. al.  But, agreeing that the use of the CIA complicates matters (its job as an intel agency is a bit of a joke given such operational efforts, which here at best causes major international law concerns in practice), there must be some difference in killing people abroad in this context or citizenship of a specific country would seem to have a bit too little note.   

A comment to my last discussion of this issue questioned my treatment of a uniformed solider with U.S. citizenship serving in a foreign army ala WWII Germany as different than the matter here.  I am not sure if I meant to imply that really.  The issue there would be if the U.S. government could target a U.S. citizen serving in a foreign army while they were serving a similar role as al-Awlaki (perhaps, the leader of a sabotage unit), particularly if they were beyond reasonable capture.  Let's say somewhere in a protected safe house in Berlin.  Would the government need to seek a warrant of sorts from a court for this?  Rather, should they?  Seems reasonable to require it.  Again, this isn't a typical battlefield situation, but a special targeting of an American citizen.  If I drew a line, it might be that an actual war with a nation state with the person in uniform or at least a formal member of a foreign force provides clearer lines than the open-ended nature of an authorization of military force that targets some group or even individual people.  If an authorization targets individual people -- a sort of bill of attainder? -- it seems to warrant more protection. 

I am open to dispute on the point. Anyway, note to the Obama Administration: Release The Justification of the Al-awlaki Killing.  The relevant congressional committee or subcommittee should subpoena it, going to court if necessary to obtain it.  What is the value of having the Republicans in control of the House if they are not going to check them in this fashion?  I'm sorry, they are doing so by being concerned about one failed solar energy company or guns or whatever. 

The Wisdom of the Radish

For critics of farmers' markets as overpriced, the author says: a "bouquet of flowers -- which is an expensive, useless item that is already dead and will be more obviously so in a week" is what people should be worried about.  Charming book, nicely sourced.

Cards Win

Phils knocked out the Braves, playing for pride, and they are in turn knocked out by the team they helped get in.  A 1-0 gem between two aces, Carpenter going the distance.  The Brewers' ace pitched today too, but less drop-off for them.  But, the Cards are dangerous.

Brewers Win

Arizona came back in the 9th, after K-Rod barely got out of the 8th, but couldn't tack on.  Their closer managed one out in the 10th before losing it.  Gutsy effort, but now I'm left with at best a "blah" option for NL.  Brewers, by default, Cards over Phils. Go Tigers!

Reruns

Detroit beat the Yanks. Another rerun (from 2007):

What one of the Republican presidential candidates are credible? Romney probably is the best, though crazy things pop up now and again to suggest otherwise, and the betting man would say he is the safe choice. The Daily Show had a tieless Mike Huckabee (I thought that was the Obama look) bit where he dreams about there being duck hunting in heaven. Right. Various sorts pipe in about how no hope Ron Paul sounds good ... being against the war/occupation and all, but elide over the fact he is prolife. This being imho insane on a public policy level leads to problems in my mind.

The Huckabee role is filled by someone else though as it turned out McCain was the best (so to speak) and back in the day would be my "sane Republican" choice a la Huntsman. That is, in 2000, when the alternative was Bush and he didn't develop into an asshole (probably had qualities, but weren't as apparent to me). But, there is a rerun flavor to all of this with the Texas cowboy role (looking even more like Josh Brolin of W fame) included. No wonder people want a wild card like Chris Christie, which sounds like it's Latin for "Chris of Chris."

I included another tidbit about the possibility of justices being in place if there was an election at the time of their appointment:

Stevens was well known as a special prosecutor, had moderate vibes and was pleasing enough generally. Ginsburg looked like a nice Jewish girl and Scalia could have chimed in -- they are friendly. Roberts was a pall bearer for Rehnquist -- come on! Souter also is someone who many would probably trust as a judge.

I think Sotomayor and Kagan would work too. Kagan was picked in part for her personality and ability to make friends in high places while Sotomayor has the great life story and appeal to the Hispanic demo. And, she is from the Bronx, so unlike some other women pols, would be a true Yankee fan. Sorry, Sonia. There's always next year where overpriced hitters will be overmatched by someone named "Fister." That closer has those K-Rod glasses and a feistiness to match, doesn't he? Well, he puts up, that's for sure.

Full Being Erica Quote

You place Josh down here and you place yourself up here. You say “That is not me, I could never be like that. That person is Other, is an undeserving, a monster”. It’s an old story. It’s how wars begin. It’s how people turn on each other. And, you know, it starts so simply too. I am not you. I am nothing like you. And it is each time a lie. Because underneath all the layers of fear and the protection, we are at our core - the same. We have the same needs. We carry with us the same capacity for good and evil.

You are your patient.

You are every patient you will ever have and every person you will ever meet.

— Dr. Tom, S4E1, Dr. Who?

Also, Erica herself:

You know that deep down, we are all the same. We have the same secret needs and the same wild dreams. We walk around thinking our secret pain, our secret joy is so unique when really, we all just want the same things: to be happy, to be safe, to be loved.

Not saying the golden rule is ever easy to apply in practice, but they are right. On some level, it can apply to other animals.

PPACA -- Not Just One Thing

Coverage of the Affordable Care Act often focuses on the fiscal penalty some will eventually have if they don't have insurance. But, as Kathleen Sebelius partially notes here, there is a helluva lot more there. The implication otherwise is BS. If overturned, the provision will be replaced somehow, most of the other stuff remaining.

Rivera Doesn't Save A Game

Eight pitches in five games in fact. Yanks lose, Nova out early hurt, but the problem was not enough offense. Go Detroit (Texas okay too)! Go Arizona and St. Louis! Really, no Yanks or Phils would be great.

Strange Idea of Religious Liberty

CNN reported:

"A military chaplain may participate in or officiate any private ceremony, whether on or off a military installation, provided that the ceremony is not prohibited by applicable state and local law," a [Pentagon] memo released Friday says. "Further a chaplain is not required to participate in or officiate a private ceremony if doing so would be in variance with the tenets of his or her religion."

Sounds perfectly reasonable, a true respect of religious liberty, "private" ceremonies not involving "marriage" pursuant to DOMA, but the great people at the "Chaplain Alliance for Religious Liberty" are upset:

By dishonestly sanctioning the use of federal facilities for ‘marriage counterfeits’ that federal law and the vast majority of Americans have rejected, the Pentagon has launched a direct assault on the fundamental unit of society – husband and wife.

We call once again for Congress to affirm that the federal definition of marriage applies to the Department of Defense and that no federal facilities may be used to circumvent federal law.  In addition, we call on Congress to enact a ‘Right of Conscience’ clause in the Revised Title 10 code to ensure that no American,  and especially not our service members, be forced to deny their religious beliefs.”

The link is via TPM.  You know what else "the vast majority of Americans have rejected"?  The contraceptive policies of the Roman Catholic Church.  Their divorce rules (is allowing divorced people to "re-marry" via "marriage counterfeits" a problem too?)  aren't too popular, if numbers are any judge, either.  Or, the policy on pre-marital sex.  The Orwellian name of the organization fits the bigotry promotion involved here.  Religious belief of various types can be handled, but not if gays are protected. 


Meanwhile, the Supreme Court needs to decide a clash between civil and religious law. Respect for free exercise of religion, including by exceptions from secular laws, honors the First Amendment. But, there was always a limit there when action was involved. Tricky question: no wonder the Supremes staid away from it for quite some time.  Be interesting to see what happens. 

Being Erica (S4, Ep1)

Pretty good -- the mystery person was her sister's ex.  Dr. Tom's lesson about how we aren't better than others and how not knowing that causes a lot of problems is on the money. But, did she not remember the ex's feelings for her?  It was covered in the past.

More on al-Awlaki

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. 

 -- Slaughterhouse Cases (1873)

Thus, the citizenship of Awlaki mattered.

Ron Paul is upping the outrage, raising the "i" word and wondering is the media will be next.  He does realize certain members of the media already has been detained or even killed in the past, right?  Paul is a flawed libertarian hero here given his stance on various things (like letting states outlaw abortion or disallow same sex marriage) and his decision a few years ago to oppose the death penalty across the board adds to the overall deal -- I welcome his efforts, but let's not pretend that there aren't better advocates or that "the left" isn't also criticizing some of the same things.  On the whole, rather President Obama than President Paul, but since he won't win (Paul), go ahead.  Next, maybe the Tea Party can admit the Wall St. protests are what they are supposedly about.  Joe sees the connections.  Admittedly, he does say a lot.  I can relate ... I just ramble on the page. 

Paul says that Awlaki should have received a fair trial, noting even Nazi war criminals received trials.  Thus, maybe it is not just citizenship, since those people at Nuremberg weren't American citizens to my knowledge.  (There were spies etc. that were, but these aren't who I think when "Nazis" come up in this context.)  If he were concerned about giving people trials and not give the President unilateral power here, why did he sign this:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

"He" doesn't mean "a court."  It suggests something like a process the third link suggests was used:

They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.

Lawyers were involved in the process too -- "rules of engagement" are the norm these days for any use of force, leading me to find "summarily" applied to this process [if properly "due" or not] as misleading as "assassination."  Erwin Chemerinsky noted in a speech that the norm in our constitutional system is that at least two branches of government has to sign off on something.  This was the case here big picture-wise -- authorization was provided by Congress and like usual, specific application was provided by some executive agency.  It is not always the case that another body has to sign off before each specific application is put into place, life, liberty and property at times in the balance.

Some believe that "necessary and appropriate" in this context is different when U.S. citizens are involved.  Citizenship split the Supreme Court in the Hamdi case, Scalia (with Stevens) arguing in dissent that detention rules for "enemy combatants" are different, Souter/Ginsburg believing the same, resting on statutory grounds.  I'm all for that. They didn't win though: O'Connor wrote the plurality, holding that citizens can be detained as enemy combatants (a clear case here -- an armed person on the battlefield -- other cases left open for lower court determination)  if suitable due process is provided.   So, a hearing, but no "trial" or criminal "charges" required as such.

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

So says a ruling involving the proper use of deadly force, which baby Alito was involved in behind the scenes.  It is said that some are upset that the Administration is being Bush-like for "secret legal justifications and undisclosed intelligence assessments" like those that were used to kill Awlaki.  To my knowledge, the Administration has been upfront on the basic logic here -- national self-defense as well as the AUMF 2001 authorizes the executive to target Al Qaeda and citizenship does not alter this general principle. The Administration has no obligation to make public "intelligence assessments" used to apply military force, though is obligated to show it to certain people in Congress.  As I referenced in the past, there is also some controversy concerning requirements to inform those with the duty to oversee human rights law of enough information that the force is being used legitimately. 

The Administration denies that some unarmed mere propagandist (see last set of blog comments) was involved here:

U.S. officials contrast intelligence suggesting Awlaki's involvement in specific plots with the activities of Adam Gadahn, an American citizen who became a principal English-language propagandist for the core al Qaeda network formerly led by Osama bin Laden.

While Gadahn appeared in angry videos calling for attacks on the United States, officials said he had not been specifically targeted for capture or killing by U.S. forces because he was regarded as a loudmouth not directly involved in plotting attacks.

The general sentiment of some is: yeah, like we are supposed to trust you.  But, if we are going to authorize military force, some degree of trust is going to be needed.  They are not going to provide their operational logs for perusal or anything.  What about if the targets are citizens, who have a right to governmental protection, even if they are overseas?  If they are somewhere we can reasonably access them, such as reachable farm in Pakistan or something, a "kill order" probably is not appropriate.  The line I would draw would be a case like this where such access is not readily available. The fact the host country assisted (or consented) removes that issue, though if does not provide reasonable assistance in detaining someone who is a threat to our country, see Bin Ladin and Afghanistan, force without local consent is legitimate as well.  

Some wanted us to indict and try him, not satisfied with Yemen doing it.  Curious about that.  The government doesn't have the power to execute people by remote control, so even if he was convicted of a capital offense, actually capturing him alive would seem to be required.  So, that seems to be something of a red herring -- the idea that a few years hence, while the government has evidence that he is continuously plotting to aid and abet violent attacks from his isolated foreign locale in the mean time, after appeals and such are concluded, critics would accept an "assassination" is a dubious proposition.  To be blunt, the logical implication is that we will have to bear with him being  at threat, the means used illegitimate.

And, we probably could -- he was just one man, somewhat fungible. Use of kill orders to target individual members seems to me something of a whack-a-mole game, though special cases like Bin Laden are somewhat unique. So, legal or not, it was not mandatory or anything to kill al-Awlaki.  This influences the calculus when determining the proper due process required.  When they are in harm's way, such as in an enemy base, they assume the risk. If detained, they should be treated as American citizens, various cases setting forth the guidelines there. 

When specifically targeted, something more should be required than if they are in effect collateral damage. Realistically, the targets here often will be living with others that can be targets too, so a slight of hand can be imagined.  The internal process is appreciated but some third party should be involved with citizens are involved. If FISA courts can be in place merely to search, something akin to that should be in place to "seize" in this fashion. The shoot to kill "in the heat of the moment" case cited earlier would not apply in this situation.  And, there seems no reason that they should not be warned.  The inability to capture for trial is one thing.  The idea that the target should be secret is quite another.  Again, he knew what was going on and in effect laughed at the government.

So, to summarize.  I think American citizens, even alleged terrorists living abroad, have the right of protection from their government.  As a general matter,  "flying killing robots" sent to kill them is bad policy.  But, legally, particularly under current law, each branch of government has authorized some use of deadly force against certain citizens. International law also allows this is certain cases, particularly if the host country agrees. Nonetheless, if individual citizens are targeted, they should have some sort of individualized independent review akin to referenced in Hamdi:

the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial
adjudicator

If such is required merely for detention, since "death is different" and worthy of more restraints, the very least required should be that here.  Given his status was made public here without the sky falling, I see little call even to have this process done totally in secret though some might be required.  He did not seek out this process and the court that decided the matter brought by his father implied that it was not necessary, so nothing "illegal" as such was done here.  But, such "due process" SHOULD be required, by statutory law (cf. Souter/Ginsburg opinion) in fact.  And, even if the person targeted doesn't want it, such a finding should be required, again akin to a search warrant obtained unless the need is waived.  In this context, that probably is not appropriate.

Ron Paul should work to pass legislation in this respect. Sen. Coons noted during his remarks to Chris Hayes that legislation is needed to add teeth to the overly broad AUMF in place, but if anything the Republicans in the House want to expand executive power too much in the other direction.  Regardless, the concern about killing U.S. citizens is completely acceptable, even if I disagree with certain aspects of its content. 

More Corporate Personhood

In a liability ruling by Justice Brennan: "In addition, by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis."

Foreign TV

YouTube is providing me new episodes of Doc Martin (UK), reduced charm but still charming enough to watch.  The message board for Being Erica (Canada) provided a link to the first episode of the new season, not due in the US until 2012, though its old home SoapNet is going bye bye.  Still don't see much of a need for a U.S. remake.

Arizona roared ahead and tacked on, forcing a Game 5. Way to go!

Cards Force a Game 5

They had a good chance to win last night, but today they actually did win.  So, it's now ace v. ace, this time the Cards' ace (who only went three last time) will have full rest.  Arizona faces elimination in a few.  They are my favorite, Cards just less annoying than the Phils. 

Food

I would have appreciated this healthy vending machine and I think many others these days would.  I started her book and the radish chapter is interesting.  Farmers markets are charming and the WIC benefit provided is a good touch.  Michelle can tell Lily about it.

"opportunists and obligationists"

[This essay includes a discussion on how language can be used to try to influence judgments, such as "health care" or "persons" in the abortion context. Similarly, I oppose the use of "Obamacare" for various reasons, but regardless, it is simply not a neutral term that does not influence the arguments made.  The term is specifically chosen for that purpose.]

I started to read the Cato Supreme Court Review, including a fairly straightforward discussion of the violent video game case, which disputed the attempt by Justice Thomas to simplify the original understanding of the question. 

On the other hand, the annual lecture series brought forth a discussion of "opportunists and obligationists" -- of the many ways to interpret the Constitution, William Van Alstyne determined there were really only two -- colloquially, those who respect original understanding (you know, like Thomas) and those who make shit up.  They "find" things that they want to keep the Constitution a "living" one.  The latter group don't really want to respect the amendment process, keeping the Constitution up to date by interpretation, particularly if enough people, for long enough (ala Bruce Ackerman's "constitutional moments"), go along. You know, like James Madison:

Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.

Aside from the New Deal, of course, an example was given respecting the ERA.  This was the proper way to amend the Constitution to protect the equal rights of women.  Instead, largely because people feared the amendment would be abused like this, the Constitution was opportunistically "interpreted" to protect gender equality.  Which isn't in there.  After all, Section 2 of the Fourteenth Amendment allows states to deny women the vote without application of a penalty by Congress that reduces their House delegation.  This must mean sex equality isn't found in the Constitution.  Me, myself, I think the ERA didn't pass because a sizable minority of the country opposed the substantive reach of the amendment, thinking men and women were in fact not equal, including beleving women should have certain protections that men would not have.  This plus a reasonable fear where an honest application of the text would lead would explain things. I am an "opportunist" though.

But, still, he can't be right.  The provision does cover blacks, but the right to vote was dealt with in another amendment. Why? At least two reasons. (1) At the time, many believed "equal protection" was a matter of civil rights, not political rights like voting.  Or, social rights for that matter, which explains why miscegenation laws and segregation was allowed.  (Even Justice Harlan was apparently not opposed to segregation in education in respect to minors.*) Voting rights cases, including before the New Deal, later blurried the lines. (2) The provision is a mild (it was later deemed not self-executable and was never applied) means to address one type of inequality. So, other than the fact that the equal protection provision has no apparent limit that doesn't apply it to women (women had SOME rights in the 1870s that put them in equal stance with men, such as the right to criminal justice protections; the ERA was about expanding its reach), that section doesn't tell you much.  The error, even by a law professor, is forgivable, though the tone makes it harder to do so.

I don't think the amendment process is obsolete though except for certain major moments, it has never been actually the primary driver of constitutional change. A constitutional amendment didn't end segregation. Was this wrong?   There are various provisions, such as be President while not being a natural born citizen, that clearly require an amendment. Others put forth a clear line where there might be some debate, such as the income tax amendment revoking a controversial 5-4 ruling.  In fact, many thought the Bill of Rights itself could be deemed redundant, at least some of them merely declaratory of basic principles (such as the 10th Amendment), there for added force.  The ERA seems to me to fit such latter categories, while the actual path taken, drawing things out over time, was the more ideal approach. 

Constitutional interpretation is hard and always has been and will be open to debate.  The attempt to make a reasonable attempt, which by the way is correct, illegitimate as well as wrong continues to annoy me. I like this series since it provides interesting perspectives and (as recent discussions suggest) leads me to support points of view that might at first blush seem not to match my overall philosophy.  The correct path has a liberal, libertarian and conservative mixture (probably other stuff), so it's good to read some of each.  I don't do in equal measure, but do try.

And, each at times should show a tad more humility about things. 

---

* A 1908 case involving a law that required a corporate charter used for a college to apply in a way that segregates the races upheld the law 7-2.  Justice Harlan dissented, but tossed in this interesting bit: "Of course what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense."  Given his Plessy dissent, this is a bit curious.  On the other hand, he went along with a law that gave higher penalties to interracial fornication, underlining his views are not 100% modern on the subject.  The fact that seven justices upheld the law that "progressives" in this day in age would deem blatantly unconstitutional is a telling point on how the New Deal was not some evil line in the sand where the Constitution went to die.

The case has other interesting lessons. The ruling upheld a special restriction on corporations, contra to Citizens United, though the current majority noted that result would harm the interests of individuals. But, Harlan in dissent suggested the same -- "private" colleges were harmed here since their discretion to teach as they saw fit, to allow people to associate as they saw fit, were harmed. The majority:

In creating a corporation, a state may withhold powers which may be exercised by and cannot be denied to an individual. It is under no obligation to treat both alike. In granting corporate powers, the legislature may deem that the best interests of the state would be subserved by some restriction, and the corporation may not plead that, in spite of the restriction, it has more or greater powers because the citizen has.

I have spoken about how an infamous 1886 ruling didn't just give corporations all the rights of persons, as the story goes, and this underlines the point.  Here, however, we have a case where privileges for a corporation advance individual rights and the government is misusing its powers, even if the target aren't natural persons.  So, there would at least have to be a middle ground there, corporations (like the NAACP) sometimes having some rights.  Corporate personhood was created for benefit of society and it benefits them if corporate persons have some rights. 

The case also touched upon a familiar principle:

Upon this we remark that, when a state court decides a case upon two grounds, one federal and the other nonfederal, this Court will not disturb the judgment if the nonfederal ground, fairly construed, sustains the decision.

This sounds like the "independent state grounds" doctrine where a state court deciding a question on local law should be respected, the federal question not addressed unnecessarily.  That is, if the case concerns a search and it reasonably (how this is determined is a separate question) can be held to violate the state constitution, the Fourth Amendment issue should not be decided. This would avoid a ruling that would apply to all states, since it would be in effect an advisory opinion.  It would also promote federalism by respecting local courts. 

iCarly -- iLove You

iCarly feels like it "jumped the shark" but still provides fans some enjoyment.  A recent episode is curious though both with its clear kinkiness (Spencer and his former babysitter)  and Carly showing herself (again) as something of a prig for being upset that it is all "unnatural" and stuff.  Really, don't be a pill. 

Not Satisfying

Nature of the game, but the Rays and Cards' games are not satisfying because each overall played better, lost anyway.  The Rays game was particularly annoying -- one guy hit three solo home runs.  After he hit two, maybe you should walk him?  Nah.  Was the difference.  4-3.

Diamondbacks Showing Life

Burnett Does The Job

The rain forced the Yanks to rely on a fourth starter, the often unreliable Burnett, but he did the job.  5.2 innings, one run.  This is not really that surprising and felt guarantee by some that he would simply collapse was a bit much.  The Tigers pen is imploding.

Cards Lose

Baseball Update

Tigers did hang on with a gutsy eight inning performance from their ace after pitching an inning on Friday and the Colts did lose. Tampa again didn't quite do it, too bad, since I'd have liked a Game 5. One mistake in the 7th could kill the Cards today. Painful. Shall see.

Cato Supreme Court Review

I did something new this year -- downloaded Cato Supreme Court Review (2010-2011) on to my Kindle. I could have downloaded it to my computer, but this makes it more portable. The series promotes an interpretation of the constitutional law in (to quote the foreword) "a classical Madisonian perspective, grounded in the nation's first principles, liberty and limited government." That's sounds nice, but it's boilerplate. The so-called "living constitutionalism" of Justice Brennan was based on such things, though what was "liberty" and how government was "limited" would be a matter of dispute.

The result is far from "largely unlimited government," particularly given all the times where the limits (hyperbole aside) are well shown. Though, thankfully, not all contributors lay it on so thick, the evil moment for many at Cato is the New Deal. To quote the foreword again: "the social engineering schemes of the Progressives. In time those schemes were 'constitutionalized' by the New Deal Court, not by amendment, as constitutionally required, but by legerdemain." So you claim. Likewise, in any number of ways, rights were more protected after the New Deal, particularly against state action. Strangely this wasn't noted.

Instead, there is a concern that after the New Deal, the Supreme Court only gave "fundamental rights" special protections. The idea there were certain rights "in their nature, fundamental; which belong, of right, to the citizens of all free governments" and warrant special protection from legislative control was however cited a hundred years before in a seminal case. If anything, the post-New Deal Court (putting aside limited spans of time during the "Lochner Era") was more protective of rights, the pre-New Deal Court tending either to be pretty lax or to only concern itself with a limited number of things. The pre-New Deal treatment of the First Amendment underlines the point. It were "progressive" judges that were most protective until the 1930s.

We are told that the fundamental rights were "defined quite often not as the Framers would have defined them, drawing on the common law, but as reflections of egalitarian aspirations." A core problem here is that a key aspect of "the common law" is that it develops over time, basic principles applied bit by bit to new cases, the law slowly changing in the process. Like a game of telephone, the final result will be quite different in various cases than the opening bid. School segregation is but one instance. And, repeatedly, "rooted in the traditions and conscience of our people as to be ranked as fundamental" -- that is, the common law -- continues to be the test. But, I thought "fundamental" rights aren't supposed to be the "liberty" interests we are supposed to be concerned about?

As the Supreme Court said over a hundred years ago:

The Constitution of the United States was ... made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of may tongues.... There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age, and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.

Thus, the "liberty" protected by due process of law, the "limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" are not fixed by what was done in the past, the specific application of the text a developing process. And, again, it was post-New Deal that the Bill of Rights (though still not the Grand Jury Clause) was applied to the states. So, I can do without a bit of the sanctimonious tone about how "progressives" ruined things. But, the Cato series as a whole was repeatedly interesting, including some liberal voices like Laurence Tribe involved. The collection this time looks good with a few less business type cases that glaze my eyes.

Onward.

[One more thing:

But of equal importance, the implication -- that where there is no power there is a right, whether enumerated or not -- was made explicitly clear by the Ninth Amendment.

If the government lacks the power to do some purely internal thing, such as use a certain file system, it is unclear what "right" (at least of value much worth noting) this offers to others.  Second, "right" implies a moral thing that is protected by God or arising out of the nature of things.  The mere ability to do something because the government cannot stop you doesn't make it a "right," even if it a matter of brunt power.

And, the government has an obligation to secure "rights."  If someone has the ability to do something because the government lacks a certain power, such as to enslave, this does not necessarily make it a positive "right" that the government has an obligation to protect in any fashion.]

Wall St. Protests

I'm not a protest type of guy but as with other things I'm glad others are out there doing it. Mass protests, not always looking very organized (though this one is organized, down to "people's mikes" to repeat things) or specific, repeatedly help force change. The cause/effect might be hazy but history teaches these things matter.

Sunday Today

Claire Danes was good in Homeland as a CIA agent. It's on Showtime, so we see some nudity (and good acting from her and others) though not CD yet. The second episode of Pan Am was a pleasant enough time waster. Both were on Sunday at 10, but saw it on demand.

Sports Update

Romo shined twice, blew it twice, including yesterday. Rays middle relief didn't have it today. Not a good start of game for Verlander. Tampa not scoring vs. Manning's young back-up. More sports to come. [Latest Score: Tigers 3-2; 10-7, Colts, Tampa blowing chance to tie.]

More Sports

My back-up NL team with Arizona collapsing would be the Brewers, so it is appreciated that the Cards are making a game of it vs. the Phils. The Jets made it a game after being down by a lot, gave up another turnover after Halftime and then the game staid as is. Lame.

Sunday Sports

Detroit/Yanks split the non-aces games. Some more interesting NFL games and Cards made some questionable moves to save the Giants. Meanwhile, Oakland made various stupid moves to help the Pats. Brewers look to get to the next round quick. Jets upcoming.

Further Viewing

Chris Hayes had some interesting stuff, including having a pro-life voice on and yesterday started with a good conversation on the current subject of controversy.  Breyer provided some interesting remarks on the 40th year anniversary of his copyright article.

"Assassination"

[It is somewhat striking that many quote the likes of Glenn Greenwald with approval, people who in part make LEGAL cases the various things Bush and Obama are doing is wrong and when some do the same they are disdainfully said to be using "legalisms."  Not that I merely made a legal case, but when I read "murder" etc., legality does come to mind.  

As to "morally," the law tends to overlap there and I repeatedly note that I'm against the general policy used here, citizen or no citizens.  "Murder" and "political" still has meaning.  Finally, the comment makes dubious assumptions that -- this happens too much -- if the other side made, it would be disdained as well.  This talking past each other happens all too often and it is one of the biggest problems with these types of discussions.] 

I was challenged by my opposition of this word and it's worthwhile to respond:

DocAmazing

Okay, Joe, define "assassination" then.  Back at LG&M, I've got three definitions, taken from politically neutral sources.  All encompass what was done to al-Awlaki. 

My primary concern is that the word is used by some to underline that we are doing something illegal here. Like "murder," implies illegitimacy. The thread referenced suggests that it can be legitimate. I guess, also, war can be hell, simply "murder," and be legal too. As someone at TalkLeft noted:

While using the appropriate word in this case - "assassination" - is intended to shock, and it definitely jars, the REAL issue is what is the battlefield?

But, before I go there, it is suggested that I look at some definitions. Sure. The first definition is "Assassination is a killing of a prominent person for political or ideological reasons." Doesn't work without argument. That is, if you want to dispute that al-Awlaki was killed because he was an operational leader or in some other way a legitimate military target, fine. Say the official story is bogus or can't be trusted. Fine. But, it was not that he was killed for political or ideological reasons ala the CIA helping with the killing of various political leaders. And, this is a decent definition -- it is what I basically think of as "assassination."

A second definition: "Murder committed by a perpetrator without the personal provocation of the victim, who is usually a government official." Okay. Again, doesn't seem to apply, unless you assume various things. If this is a legal killing, as I argue it reasonably can said to be, it isn't "murder." I'm supposed to (per the thread) being trying to "dodge" something here. Quoting me a definition citing "murder" when I'm arguing this is legal, which "murder" is not, doesn't help explain me much there. Now, as I said, as with abortion and the death penalty, you can disagree with the law and call it "murder." But, I'm using it in a legal sense in response to those who those who imply it is not. And, the second part is quite questionable too. There was some "provocation."

Again, I can work with that definition, though the first one is probably better. Third, Wikipedia: An assassination is “to murder (a usually prominent person) by a sudden and/or secret attack, often for political reasons.”[1][2] An additional definition is “the act of deliberately killing someone, especially a public figure, usually for hire or for political reasons.” Again, if you want to call this "murder" go right ahead, some think killing OBL was "murder." But, the argument here is that it is not. This wasn't "for hire" either, nor again, "political," unless the term is stretched to a degree that war itself ("politics by other means") can mean that, which isn't quite how the law uses the word. Since we are annoyed when others stretch words in that sense, I wish to be consistent.

The Wikipedia entry cited includes this:

On the other hand, Georgetown Law Professor Gary Solis, in his 2010 book entitled The Law of Armed Conflict: International Humanitarian Law in War, writes: "Assassinations and targeted killings are very different acts".[31] The use of the term assassination is opposed, as it denotes murder, whereas the terrorists are targeted in self-defense, and thus it is viewed as a killing, but not a crime.[33] Judge Abraham Sofaer, former federal judge for the U.S. District Court for the Southern District of New York, wrote on the subject:

When people call a targeted killing an "assassination," they are attempting to preclude debate on the merits of the action. Assassination is widely defined as murder, and is for that reason prohibited in the United States.... U.S. officials may not kill people merely because their policies are seen as detrimental to our interests.... But killings in self-defense are no more "assassinations" in international affairs than they are murders when undertaken by our police forces against domestic killers. Targeted killings in self-defense have been authoritatively determined by the federal government to fall outside the assassination prohibition.

An executive order was put in place barring "assassination." A CRS Report discussed it (h/t). The report noted:

In general, it appears that an assassination may be viewed as an intentional killing of a targeted individual committed for political purposes.

The idea that comes to mind is the CIA trying to kill Castro, not the reasons summarized in the NYT article cited yesterday. The report goes on:

In time of war, assassination appears to be distinguished in some discussions from cases of lawful killing, because the former is carried out in a “treacherous” manner.10 “Treacherous” is not defined in the Hague Convention IV, but does not appear to be interpreted to foreclose operations in time of war involving the element of surprise.11 However, putting a price on the head of an enemy appears to be regarded by some as an act which would render a resulting killing an assassination, as distinguished from a lawful attack on legitimate military targets, including the enemy chain of command.

I'm quite willing to admit to some debate here and "assassination" can have a colloquial or argumentative (assuming it was illegal, not military related) application, but that is basically where I'm coming from. Since this is not "murder" or "political" (unless the word is stretch severely), the definitions if fine, don't seem to apply. It is illegal to "assassinate" people.

And, even colloquially, I myself would use the word in respect to some political hit, such as the "assassination" of Abraham Lincoln or some opposition leader of the Popular Front, that is a civilian that has protected status as a noncombatant. Killing someone pursuant to his position in an organization Congress and the Supreme Court recognizes we are in armed conflict with for the reasons spelled out in detail yesterday doesn't do it.

More Baseball

The Rays' ace got messy though the team made it respectable. More than can be said for other teams (including the completion of Game 1) except for the Diamondbacks, who ended the game in the 7th by pitching to Cecil Fielder.  Some pretty bad (well uneven) baseball.

More on Reyes

Some are upset that he sat out after his first at bat in his last game to secure a batting title.  It's granted that St. Ted Williams played his final games even with his record at risk.  But, being human is not a mortal sin.  As if those complaining would be saints about it.

More on al-Awlaki

I cannot support the strong denunciation of the killing of Awlaki.

First, I do not think it was an "assassination" and the use of the word bothers me.  Second, and I guess this underlines along with the first that people are talking different languages here, "charges" aren't required before military force is used, even against American citizens. So, harping on that doesn't quite do anything for me.  Third, the argument (however broad) made by the Administration isn't some power to kill anyone, anywhere.  Fourth, all the same, I'm not fine with all of this.

I already quoted an international law blog with centrist Democrat leanings. Another who is no kneejerk supporter of our "war on terror" can be quoted to show the complications involved here:

Admiral Yamamoto was the Commander in Chief of Japan’s Combined Fleet, the prototypical combatant who was targetable at any time by the U.S.  Al-Awlaki was a radical cleric whose targetability depended on whether he assumed a “continuous combat function” in AQAP (in which case he was, like Yamamoto, targetable at any time), or whether he was a civilian who directly participated in hostilities on various occasions (in which case he was targetable only for the duration of his direct participation).  Which is it?  I frankly don’t know — but I do know that determining al-Awlaki’s targetabiity is vastly more legally and factually complicated than whether it was legal to kill an enemy Admiral in a formally-declared war.

This helps the "he should get some sort of court process" side some, but it STILL does not mean he has to be "charged" with a "crime," so quoting the Fifth Amendment simply takes you only so far. That isn't the rule in detaining someone in a mental institution either. The civil and military rules change the rules some. This also brings to mind al-Marri, where capturing someone on domestic soil was argued to be different. As Scott Shane (not Savage) wrote today:

The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.

This might be a bit simplified but it reflects his role as an "operational" member or some such thing of Al Qaeda and outside of our ability to capture him. This doesn't matter to some people (I say this politely) and some will remind people that we really aren't "at war" and can't be against an organization. But, politely, this seems to be like saying abortion is murder -- the 2001 AUMF and international law (though the rules are complex/debatable as applied) authorized military force, which is admittedly not full fledged "war" which brings various other legal results. Ditto the use of "assassination" -- legally, killing legitimate targets (people) is not that. Words have legal meanings and if you are going to not use them, I start to have a visceral reaction.

Awlaki's father brought a federal suit to protect him. Judge Bates, who has shown himself to be a reasonable person on executive power (offering real limits), rejected the suit. He did not rest on state secrets, the Administration saying their reasoning on targeting him was secret. So, those who raise that raise something of a red flag. The article also notes that the ruling was limited, even if one thinks that in practice, it will be open-ended:

But Judge Bates rejected the notion that his ruling granted the executive “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.”

“The court only concludes that it lacks capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an ‘operational member’ ” of Al Qaeda’s Yemen branch, “presents such a threat to national security that the United States may authorize the use of lethal force against him,” Judge Bates said.

So, contra to the guest on Rachel Maddow last night, it is unclear if someone can be shot in NJ. That is, it's a much large step than claimed here by the Administration. I would be strongly against that as I said in the al-Marri discussion. Anyway, the fact that criminal process leaves open other process. From today's article:

No public legal process led to Mr. Awlaki’s becoming the first American citizen to be placed on the C.I.A.’s list of Qaeda-linked terrorists to be captured or killed. Officials said that every name added to the list underwent a careful, if secret, legal review. Because of Mr. Awlaki’s citizenship, the decision to add him to the target list was approved by the National Security Council as well.

Some, logically, aren't too impressed. It is a limit, a process though and if he was on the battlefield, the government didn't have to go to court first to "prove" him "guilty." But, the fact that he had a target on his back was known (I'm not sure how). That matters. Judge Bates noted that he himself didn't seem to want to challenge it in court. I think he probably should have the right to do so. If pressed, I think he would lose in the federal circuit, but that is a separate matter. Of course, he could have submitted himself to custody, though probably not in Yemen, since they convicted him in absentia.

I honestly can't feel too sorry for a guy who put himself in harm's way in enemy territory, especially since he was aware of being targeted and didn't seem to care. It simply was not some horrible horrible thing to target him like this. The nature of this conflict justifies addressing the new situation with new rules and safeguards. This includes - if we allow it - some third party (even ex parte) examining the evidence before putting American citizens on kill lists. I cited an article on how some sort of safeguard should be in place for drone use generally. Let's be honest though and note that judges would be loathe to second guess the government here. And, though there was debate (as is often the case on military targets) on the role of Awlaki, the test isn't beyond a reasonable doubt or something. The Administration in fact claims a higher test for detaining "enemy combatants" than some of the DC appeals judges want to use.  Would it be any difference here?  So, the result is likely to be risky. 

So, if I oppose how this went down, it is in effect more ideal than practical. The level of opposition bothers me more than saying that the Administration was wrong. They might have been. It's a close call to me, especially under the rules in place, which matters if we are concerned with the "rule of law," not simply what is right or wrong. Given it was a close call, ideally, I wouldn't have killed the guy. Yeah, I know. Who am I? As to pragmatics, there are various ways to go there:

The death of Anwar al-Awlaki, an American-born cleric linked to al Qaeda's operations in Yemen, is likely to impact American Arabs and Muslims in positive fashion, according to Dr. Hussein Ibish, former communications director for the Arab-American Anti-Discrimination Commitee.

Again, that counsels caution.

Rain Rain Go Away

The Tigers/Yanks series was hit by rain, hurting the Tigers since the game was suspended after their ace could only pitch an inning.  It was okay all day, but of course, they had to play at night.  The weather was supposed to be mild rain. But, still.  Rain might continue.