Stuart Taylor

... angry asshole. Yet again. [And more! BTW, is it really an open question if waterboarding is "prolonged mental pain or suffering" in any sane world? People suffer that after one traumatic accident.]

Gun Stories: Life-Changing Experiences with Guns

The author has one set of (white) teens supporting target shooting and sometimes hunting and another (minority) with negative gun experiences. This racial divide aside, the book was insightful.

Pragmatic Scalia?

Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.

- MARYLAND v . SHATZER (opinion by Justice Scalia)

Miranda is the well known Supreme Court ruling that required suspects be advised of their constitutional rights, including the right to remain silent and to a lawyer, before being questioned. This eminently reasonable judgment that a confession made without a knowledgeable understanding of one's rights is tainted was controversial at the time, but became well settled law.

Exceptions and confusions on just how to truly honor it continue to bedevil the courts as shown by a recent ruling on the proper wording of the warnings. Shatzer deals with an accepted principle arising from Miranda -- once someone declares they want an attorney, the interrogation must cease until they are able to see one. This provides a chance for them to get counsel on the proper path to take. The police cannot repeatedly "ask" them again and again beforehand, trying to wear down the person (often in jail) to waive his/her constitutional rights.

These rules are not expressly found in the Constitution, but are set up by the courts to insure that the basic rules, e.g., the right to remain silent and to have an attorney, are truly honored in practice. Such "judge made law," therefore is in effect a pragmatic means to insure that the government has clear rules to follow, even if in the process somewhat arbitrary rules are in effect as applied to various situations.

Shatzer expanded on this. It determined a "14 day rule" -- even in respect to someone in custody, if a person is questioned again after two weeks, a previous request for an attorney does not block re-questioning. Scalia explains the need to what some (including Thomas/Stevens* from in effect opposite directions) deemed an artificial time limit:

It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.

Thus, following his desire for "bright line rules" but still sounding more like Breyer than himself, he justifies the new rule on what sounds like pragmatic grounds:

The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.

That is, you have a basic principle, and 14 days is a reasonable means to practice it in the real world. Seven justices accepted this judgment in full. Putting aside the strength of Stevens' concurrence (the two 1/2 year span involved in the case is long enough even if 14 days might not be), it is a useful reminder of how Scalia works in practice. Sometimes, it is okay to follow precedent and create judge made rules to honor basic constitutional principles, originalist principles not really appearing to factor into the analysis much at all.

---

* As is his wont, Scalia takes time to answer Stevens' solo concurrence, adding to the long term Scalia/Stevens back and forth. For some reason, Thomas' concurrence is not as worthy of comment.

Coffee Party

Furious at the tempest over the Tea Party -- the scattershot citizen uprising against big government and wild spending -- Annabel Park did what any American does when she feels her voice has been drowned out: She squeezed her anger into a Facebook status update.

let's start a coffee party . . . smoothie party. red bull party. anything but tea. geez. ooh how about cappuccino party? that would really piss 'em off bec it sounds elitist . . . let's get together and drink cappuccino and have real political dialogue with substance and compassion.

I can respect the skepticism of some (thread), but this article on the Coffee Party movement was intriguing. See as well the website, including the vids (the one by the founder and the third by an older army vet in particular). Hmm ... maybe, I should have wrote this when having my morning coffee!

The point of public education

[I wrote this in response to the Parents Involved case. An interesting criticism of original meaning constitutionalism from the same time (with a comment from me) can be found here.]

Public education has various purposes that separate it from education alone. Some here think parents should have free choice to send their children to the school of their choice, which they very well do have.

For instance, Pierce v. Society of Sisters held that you can send a child to parochial school. States also allow you to home school. The Supremes even held there was a constitutional right to remove an Amish child from high school (at least the last two years) if it clashed with religious principles. There also is no 'constitutional right' to send your child to the public school of your choice. Nor is there a constitutional right to dictate what the public schools teach. Sorry creation scientists and radical leftists.

This last point is important. The public school was established as a means to promote good citizenship. This means something special in this country. For instance, public schools have an open admissions policy. They cannot teach sectarian religious principles or lead students in prayer. They (should) promote American values like free inquiry and principles found in documents like the Declaration of Independence and Constitution.

And, they overall bring us all together. Once upon a time, many urban schools used the Protestant Bible, causing great Protestant/Roman Catholic divisions. Rulings such as Engel v. Vitale underlined the problems with this technique. Again, parents can send their children to religious/private schools. But, public schools provide a means of having children of all creeds coming together. For instance:

authorities have perceived public schools as an "assimilative force" by which diverse and conflicting elements in our society are brought together on a broad but common ground.

If there are limited slots, promoting such diversity in some fashion as but one factor in the selection process can be a good idea. Ditto things like neighborhood, ideology, educational level [see, e.g., a recent story thread in the comic strip "For Better or For Worse" concerning 'special needs' students] and so forth. Diversity promotes the ends of public education. If you don't like it, or don't like your kid being taught evolution or whatnot, you need not send them to public school.

The same applies to racial diversity. It is legitimate for schools to optionally promote this end, bringing together all races along with other groups.* It is not the only concern though you'd think that from some rhetoric on the other side. But, it surely can be one concern. Bringing together different groups is a core value of public education.

How can we properly understand and learn to live with fellow citizens if they are but strangers to us from early years? As with all 'different' groups, including sexual and political in nature, separation promotes prejudice, misunderstanding, and other wrongs that a diverse education can help prevent. Promoting diversity requires some recognition that we are different in some ways, or is trying to get all points of view in class illegitimate because it causes division between people inherently all alike?

The program here does in part address the problems of racial inequality. But, looking at the actual beliefs of those behind Brown, such as Thurgood Marshall, we also saw a broader version. A unifying vision of education, one in which separate but equal is not compelled just because the state did not directly cause it. In fact, it was a violation of the very principles he fought against.

Some question the means argued by the dissent here, which to me is problematic,** but worse are those who seem to miss the importance of the end. They think race conscious programs are sometimes necessary when the state mandates segregation, but not when its action allow it to go on indirectly. But, if the end result is the same, is this not akin to saying the rich and poor both cannot sleep under bridges? Equality, like the varied purposes expressed in the Preamble of the Constitution, sometimes requires, to use a phrase, affirmative action.

Surely, the state can try on their own to take a different path. At the very least, the goal is correct. Sadly, some fail even to seem to think that is true.

---

* Likewise, like it or not, in some fashion segregation in fact tends to be in some fashion a result of state action ... which can very well be the active choice to not act:

"But if, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible."

The fact we can lie to ourselves and ignore the connection, notwithstanding.

** Economic solutions are of limited value when the problem is racial in particular. Even conservative leaning people have asked 'if not this, what?,' viewing things from a perch of watching history pass by and knowing a thing or two about education overall.

Merit Remains Valuable

The mess in the N.Y. governor's mansion continues and underlines the importance of selecting people, including seconds in command, by merit, not just politics or because they seem like good people.

More BS

This article's abuse of the word "reasonable" and "obstructionist" (not meeting 1/4 way ... not really meeting the test) underlines my recent post on how basic principles are not understood. The reality community has yet to make a full comeback.

TV Quickies

Life Unexpected and Being Erica (now both with Karpluk) both had uncomfortable relationship moment plot lines. Cringe-worthy is not really enjoyable. Erica needs another good "go back" moment already!

Olympics

Never an Olympics fan but this sort of thing is amazing all the same.

"Realism" In Judging

It is a bit too inside baseball for me to fully enjoy, but Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Prof. Tamanaha* is recommended. He discusses the book here. A taste:

I call this “balanced realism” because it acknowledges the limitations inherent to law and human judges—which cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule bound decisions. For at least two centuries, the book shows, judges and jurists have described law and judging in balanced realist terms. The formalist-realist divide that dominates contemporary views of judging tends to obscure this common ground.

The need for judgment, one that will open up some disagreement, is relevant here because he still believes that the "rule of law" is both possible and fundamental. This requires some minimum standards, and he cites research to show that judges as a whole do agree in most cases.

frequently there are legally “correct answers” and “incorrect answers,” as determined by prevailing legal conventions and practices

Thus, though some don't agree it has been violated, there is some minimum standard here that someone in Yoo/Bybee's place could have violated. I fear from reading some of the discussions that some disagree. That in effect they had a job to spin the law to meet the needs of the administration and to challenge them on that is the outrageous thing. As the author notes, the assumption that the law is merely political and partisan is likely to promote just that.

The book has received lots of kudos from the legal community, including from the likes of Prof. Kerr over at Volokh Conspiracy, the opposite number blog of the author. This helps me respect it, since clearly I'm not able to fully judge the research behind it with my more limited knowledge of the subject. I do think someone shouldn't take away from the book that those terms are meaningless. But, as with "originalism," there can be a lot of exaggeration.

This article of a "formalist" that admits to some discretion in close and novel cases, cited in the book, is also a good read.

---

* He at times blogs at Balkinization, providing sound commentary with a polite style, a good balance to some of the excitable [Sandy Levinson honestly feels our political system is in deep **** at the moment, but really needs to calm down sometimes. Still, everyone needs a place to vent.] or somewhat elitist sounding others there. This includes those who don't allow comments.

Justice Kagan?

I think this makes a lot of sense, including the use of someone not on the appellate bench and without a lot of baggage. Maybe, Kagan, then Wood. BTW, Obama "preparing" for something (another justice retiring) doesn't mean the same thing as that happening.

Understanding the Basics

Justice Souter has been promoting the importance of civics, truly concerned that there is a basic lack of understanding about simple concepts involving our means of government. This is a reasonable fear -- repeatedly, a debate over some legal or political matter brings to bear the fact that basic concepts (such as judicial review or whatever) are misunderstood. The below is in response to one of the Slate articles regarding the OPR report previously cited.

After more than a year's delay, the Department of Justice released the Office of Professional Responsibility's report on whether government lawyers who wrote two notorious torture memos violated professional ethics.

There appears to be some confusion on what is at stake here. Some are under the impression that people (mainly the "left" or "far left," apparently) want to put people in jail for writing legal opinions because we don't agree with them.

The immediate issue is a referral to a bar association for sanctions, which might include stripping of a law license. This happens from time to time, including when lawyers are found to have violated their professional ethical requirements, such as providing particularly shoddy work product. The test is not a dispute over the basic policy promoted by the lawyers in question or dislike of their clients. Some lawyers have a higher standard to meet:

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no."

-- Dawn Johnsen, nominated as head of the Office of Legal Counsel

As Jack Cerf., a veteran of the office, explained, the OLC is not the same thing as the President's personal lawyer. OLC lawyers have a special obligation, which means the actions of Yoo et. al. rankles that much more. Nonetheless, some are under the impression that slanted spin jobs that provide a shoddy description of the law, advice that is particularly nefarious since it would be used to determine the proper scope of activities such as waterboarding, was Yoo's "job."

Though it is not the immediate issue at hand, some argue a step further. They argue that there is a reasonable claim to be made that professional ethics alone were not violated here. In fact, they argue that the lawyers here (including one who is now a federal appellate judge) should be fully investigated as possible criminals. This too has precedent:

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

Some suggest Altstoetter is not necessarily the best case to use, but I cite a specific principle here, and it works on that level. One that also highlights that "existential threats" do not justify violations of the law (or professional responsibility), if anything, we must be on guard more in such cases since they are when the rules don't seem so important any more. This is a harder case to make, though the report helps to make it by filling in some details of how things occurred, while others have also done yeoman work in this department. This includes evidence that Yoo and others are guilty of conspiracy.

But, even if a "beyond a reasonable doubt" standard might not be met, those who consider Yoo et. al. to be "criminals" have something like this in mind. And, like those who think O.J. is a murderer, they can colloquially so argue, even if they will avoid a court of law.

A final basic misunderstanding respects Yoo's tenure. See, e.g., here. Basically, it is argued by some that it is a threat of academic freedom to strip him of tenure, or even, to have a full investigation over the matter. Cynics would say the likely result would be something like the report in question, but even that was productive in various ways. Anyway, the investigation would not be based on simply doing legal work for the Bush Administration. It would have to determine that while doing so, his shoddy work or even possible criminal behavior makes him an unfit teacher.

The matter at hand is not just Yoo or Bybee. It is understanding basic principles, principles sadly appear not to be understood or accepted.

---

PS Some cite possible wrongdoing of the Obama Administration, including use of drone attacks, some that might target U.S. citizens. Not bringing Bush Administration officials to task only furthers such possibly nefarious activities. And, many critics of Bush continue to criticize Obama in such areas. The alleged claim of hypocrisy doesn't stick.

Confirm Dawn Johnsen

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no."

-- Dawn Johnsen, nominated as head of the Office of Legal Counsel

Various moves have some real significance, both symbolic and otherwise. Confirmation of Dawn Johnsen (she already has one or more Republican votes on her side) would be one of them. Holding up her nomination is one of those moves that really rankles. People are led to believe that there really are no standards here. Yoo/Bybee were just doing their jobs, as if they were but speechwriters or writing a law review article.

Even strong critics of the report are left citing "limits of what we can expect from law and from rules of professional responsibility." The hell with that. Dawn Johnsen and others do expect more. Of course, CYA jobs like this report and not fully investigating torture or having a truth commission promotes such low standards.

Aim low ...

Nowhere in Africa

[Spoiler: I discuss a scene from the movie below.]

"[T]ells the story of a Jewish family that emigrates to Kenya during World War II to escape the Nazis and run a farm" with various family struggles arising. Based on true events, but use of internal dialogues and other devices -- even if the author did some research -- suggests it is only "based on the truth." The same appears to be the case with her first "African novel," also in some fashion based on fact.

Stefanie Zweig wrote the novel, but it is not just through her eyes. We thus see events through the eyes of many characters, including some pretty minor ones. This adds to the book though be it the translation or the original, it is a bit bulky and draggy at times. The expression of emotions and so forth comes off as heavy-handed. We meet the author in the DVD extras, another DVD with so much material that even those who don't watch the film have lots to see. It would be interesting to learn the differences between truth and fiction here.

The film, though I did not know it when I first saw it, was my first introduction to Juliane Köhler, who already started down the road of playing WWII era characters. The film changes various details but is generally loyal to the novel, though various things are compressed to allow it to fit in the different genre. One example of this is that the father's friend isn't the one who picks up the daughter at school (the scene of the cocky British solider going to the headmaster cut anyway) but the father himself. This mostly works though the final third of the movie appears a bit disjointed, too much material needing to be compressed in about an hour of film.

Also, and for some reason it does not appear (not when it occurs; I did not listen to the whole commentary) to be discussed, the film has the mother have an affair with a British soldier to get help when they are detained at the beginning of WWII (ironically, there are "enemy aliens" in British Kenya). In the book, a totally innocent explanation is provided (another emigrant couple), and it is striking given again the author is still alive and all. How did she feel about the implication her mother committed adultery, even if one understands why?

Overall, I would recommend both the novel and the film, particularly if you want to meet the actors and the author by checking out the DVD. One interesting tidbit of the sort you pick up on commentary is the fact that the father is played by someone from Georgia (country) so had a thick accent, resulting in the need of dubbing. However, we hear a bit of his actual voice when he speaks English. Those in the business might recognize this fact, but I surely couldn't tell, except perhaps if I really tried to see. After all, some films are poorly dubbed or remastered, so the voices don't totally match the filmed dialogue anyways.

Definitely a means to step into another world.

"David Margolis’s Whitewashing"

Guess he was the right man for the job. Of course, Holder could overrule him; bar organizations could still investigate. But, one CYA careerist says it's a bad idea, so hey, their hands are tied, really.

"Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway"

The decision represents the end of a five-year internal battle and flatly rejects recommendations by the department's ethics investigators.

What Balkin said. But, see here (comments). Again, Yoo is no Jesselyn Radack! Of course, this war crime enabling: Friday release.

Enemies of the People: My Family's Journey to America

Hungarian-American journalist Kati Marton was on Colbert recently promoting the story of her journalist parents struggles in the old country (1950s) and the effect on her childhood. Good brisk read.

TV Quickies

Life Unexpected had another tedious people behaving badly episode. But, after a couple lulls, Being Erica was very good as Erica had a "this day doesn't count" day. Her life "now" is the best part of the show of late. And, Jennifer Tilly (Craig) is still a great (and sexy) guest.

Bronx Justice

Among the round-up of local news in today's NY Daily News is a small story entitled "HS football star's killer gets 25 yrs." A popular Bronx high school football star was killed in 2005 at sixteen, the killer received a rather long sentence of twenty-five years for manslaughter and another ten for a weapons charge. Curious about the story, only the name of the killer was supplied without more back story, I checked online. A 2005 article suggests the killing received some extended attention at the time:

They remembered Fernando Corea Jr. yesterday in the working-class neighborhood in the Bronx where he had often lived amid danger and had dared to be different. He loved school and dreamed of a pro football career, they said, and stood up to the resentful thugs who lured him into fights. ...

On Saturday, 12 hours after the shooting, the police charged a youth they identified as Quindel Francis, 16, of Dewey Avenue in Throgs Neck, with the shooting. They said it was the apparent result of a longstanding feud between the two youths, dating to 2003 when they were classmates at Intermediate School 192. No gun was found, but investigators said Quindel made statements implicating himself.

Various articles filled in some more details. For instance:

Mr. Francis has spent the past five years in jail, and he has become something of a regular at Criminal Court in the Bronx. He has already sat through two mistrials and is now in the latter stages of his third trial on charges of second-degree murder and manslaughter in the killing of his classmate, Fernando Corea Jr., a high school football star, on Feb. 11, 2005.

A hung jury and the passage of time clouding memories and so forth suggests an explanation both for the crime and punishment -- manslaughter is easier to prove, but the heinous nature of the crime explains the long sentence for what murder might not provide in other circumstances. It is to be recalled, the cruelty of the crime notwithstanding, that a sixteen year old is being given thirty-five years for basically one criminal act.* This after five years in prison while being legally innocent. And, even now, at the sentencing the two families blame each other. Such absurdity:

It’s your fault!” Mr. Francis’s mother and other supporters shouted at Mr. Corea as she left the courtroom moments later. “It’s because of you!”

The angry scene capped an emotional afternoon in the Bronx courthouse that left the mothers of Mr. Francis and Mr. Corea weeping on opposite sides of the gallery. Each had family member comforting her, but the sobs threatened to drown out the judge’s words.

As is teenagers walking around with guns a few miles from where I'm typing this, the next victim (maybe not one praised by a coach of the Jets before being killed) waiting in the wings.


---

* The U.S. Supreme Court is deciding now if life without parole is unconstitutional for minors, but thirty-five years for manslaughter and a weapons charge (if arising from an incident following past harassment of the victim) is pretty up there as well for crimes performed at sixteen.

Netflix Not Perfect

One flaw is suggested by the "long wait" for a new release like Whip It! Likewise, though many films can be directly downloaded, you still have to wait a day or more for others. Finally, the plans allow 1-8 DVDs at a time, but 3/16.99 monthly etc. is not worth it.