Some thoughts on Wikileaks

The 21st Century has removed many barriers, resulting in dumps of information like this that has good and bad aspects. Blaming any one source is as misguided as claiming there is nothing to see here. The value of maturity and media to process this stuff is both evident.

More on Stevens

And Also: God of liberty: A Religious History of the American Revolution by Thomas S. Kidd is interesting but incomplete. Much on evangelistic faiths while deism and such is covered less. The essential unifying function of religion is not quite shown. Still worthwhile.

My quick comment on the Stevens' book review was too quick on one point. It was not his comments on "activism" that I was thinking about but his "agenda" point.

In 1972, in Furman v. Georgia, the Court effectively invalidated all forty-one existing state and District of Columbia capital punishment statutes. Rather than advancing Justice Goldberg’s purported campaign, Furman, in Garland’s view, was a failure: a temporary moratorium on executions that energized and motivated a powerful pro–death penalty movement. But that analysis presumes that the Court should have been or sought to be an “engine of reform.” That is quite wrong. The Court has no agenda of its own, but may (and must) only decide issues that litigants raise in cases over which the Court has jurisdiction.

The Court continuously has some sort of "agenda" and has various means, including docket control, to carry it out. There are various limits to this "agenda," but suffice to say "Gideon's Trumpet" just didn't fall into their laps. Other examples, back to the days of John Marshall, suggests some sort of "agenda." Some discussed his comments on "judicial activism" and so forth. I responded. Simply put, the best approach there is to focus on the merits, not just "he likes or dislikes the result" sort of thing.

Stevens also was on 60 Minutes, part of his end of his tenure media blitz, this time shown on television. The most notable bit probably is getting Souter to consent to on camera comments, including commenting how one strong opinion by Stevens was an example of him "earning his salary." To be honest, when he was nominated, I wasn't sure about the guy. Now, I think he is probably the best selection in my lifetime. Stevens was selected when I was quite young, but Souter was nominated post-Bork, when nominations were more complicated. So, that underlines the value of his pick.

The Supreme Court is back to work. A couple interesting statements regarding orders. The "liberals" via Sotomayor went out of their way to make a statement regarding a capital case that agreed with the denial, but noted that some other like event might not be as "harmless" as this one. Justice Sotomayor has shown signs of being the future strong voice on the liberal side. This is not the first time she went out of her way to flag an issue of concern.

Meanwhile, Alito pointed to a copyright case involving a teenager downloading files, agreeing there is no apparent circuit split, but the question is worth review. And, tossed in that if the case will be easy to make, some discretion to take age and other criteria into account might be warranted. Recently, I was thinking that overall Alito has not impressed me much at all, coming off as a bland conservative with some asshole tendencies. But, here he shows some promise.

"On the Death Sentence" [Stevens Reviews Book]

Justice Stevens provides a quite interesting [his final stance on the Court] review of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland.  The no "activism" point is dubious.  Two recent speeches on other subjects can be found here.

NYG Win When They Have To

Brandin Rackley sighting last night.  She's fun.  The Giants finished off a Second Half comeback this time, the defense doing their job when it counted.  Buffalo again played like the best two win team.  The fact they still are playing here? Again, two win team.

Desert Hearts

The stories behind both this film (see, e.g., commentary track) and the original book (which goes in some other, somewhat melodramatic, directions) are interesting.  The film itself is small/indie at its best, telling a good story (rough along the edges) with great performances.

A bit more

Saw Ms. Applegate on Conan, heavily pregnant and doing well as to her recent health issue (also a subplot of sorts on In Treatment).  Tangled seriously addresses mommy/independence issues and is overall good stuff, so some bland aspects still make it a fair bargain. 

Happy Thanksgiving! [Football Edition]

Dallas (down to the wire) and Detroit (into the Third) failed at upset attempts while the Jets again waited until the Second Half (but not as late as usual) to dispose of a mediocre team.

Nice Film, Psychoanalysis Optional

Tangled is an enjoyable take-off of the Rapunzel fairy tale, if more tame than the original.  Pretty tough backstory all the same, if a somewhat boring love interest.  Nice songs and scenery with the cute animal stuff also well restrained.  Oh, it's "PG" but not too harsh.

Happy Thanksgiving!

Not my family's approach.  Happy Birthday to Christiana Applegate.

Big Picture on Airport Screening Controversy

[Via TPM, here is a TSA information video.  This sort of education should be a main priority, including informing media centers, travel agencies and businesses that influence public opinion.] 

The big picture should be kept in mind here; the fact that someone does not personally fly, rarely flies or even finds this of trivial concern does not end the issue.  The matter can and should be addressed from various angles.  Some will focus on one or the other and if this leads to more focus overall, all the better. 

Some, particularly those who do travel a lot, find this a wrongful invasion of privacy.  Any single invasion can be explained away. Even a warrantless invasion of one's home. If the police stops by your home and asks to come in to ask a few questions, one might say, "I would say 'sure,' since I have nothing to hide." But, invasions of privacy as with everything else is not a singular thing. This occurs to some people more when the issue at hand is (whatever that might be) concerns them the most. Then, as here, they care.  See, e.g., Glenn Greenwald today on the "theater" of the whole thing, but also see here on concerns about unnecessary use of radiation in other contexts.   "Reasonable expectoration of privacy" is going to on some level have a populist flavor, minority rights not always weighed equally. 

The issue at hand isn't quite novel. Before many who are wary of their "junk" being touched were born, the Supreme Court upheld a detention at an airport to allow time for drugs to be excreted and/or to allow a rectal exam. Justice Stevens noted that this otherwise would be unjustified, but she was given an easy alternative -- an X-Ray. We have here a similar "alternative" (more graphic* but the patdown is not quite akin to an extended wait and rectal exam either). The dissent rejected this invasion of privacy to prevent the evil of the day, citing health concerns as well.

Drug profiling has been criticized in part because of its questionable efficiency. Rep. Rush Holt, a member of the "biomedical caucus" (obscure but probably more important to the general public than many of the hot button caucuses), raises this and other concerns here, including the dangers of repeated exposure (as would be the case for business travelers; FDL flags other possible sensitive groups here). Cited is the Israeli screening system, particularly since Holt often traveled there and experienced it first hand.  The matter was briefly addressed on Keith recently but I received few specifics.  There might be a reason why it is not used here.  This underlines the need for a full and educated (and educational) discussion of the issues, including in media accounts.  I was also pointed to this.

Efficiency should be a pragmatic concern of those who do not have as emotional of a response as some people (the same applies to other things, such as torture and cruel treatment). Not being an expert, I just raise it as a concern, particularly since societal opposition has to be taken into consideration. Sometimes, privacy and other good things has to be invaded. But, since they are important as well as essential rights under our system, it has to be done with special care. The same applies to the secrecy of the methods here. Yes, the TSA might rightly in various cases retain some secrecy. But, if handled badly, society (and members of Congress) won't trust them, and the net effect can be that it won't be allowed to do so even arguably when it should.

An alternative suggested is racial profiling. Of whom? Jose Padilla doesn't really look Muslim to me. If there is to be any profiling, it should be by action and other neutral criteria. Just you watch. Some Timothy McVeigh sort will try something. After all, if an doctor can be assassinated in a church, why not an airport or airplane? Rationality isn't the name of the game here. Some scenario can be imagined where some explosive device will be used that can threaten the well being of the passengers and plane. Again, I'm not an expert.  ["Arlington" is and has various posts that are worth reading.]  It's just put out there as something to consider as part of the mix.

Finally, in respect to the planned protest. I have mixed feelings. I don't really buy the hyperbole of some who deemed it "cruel" or the like. I can be convinced that it's misguided. I also sort of doubt THAT many people would actually go through with it; surely, not enough to shut down the airports or anything. If the only result is that there are some delays, it very well might be worth it. Protest is not some painless event. It is likely to result in some discomfort to ordinary people. It's hard to judge though until I see the effects of the actual protest.

---

* At first blush, I personally don't find the images as offensive as some people do. We are not talking about actual pictures of our nude bodies. "Sexual assault" is a bit much.  And, the "don't touch my junk" business is a bit infantile.  So is fear of "homosexual" TSA agents. Keith has been a tad overblown too. 

But, yes, some intimacy is at issue, so some special care should be involved.   A look at the FDL flier linked about suggests this is not just stick figure stuff; questions about protecting the release or storage of the data also have arisen (but see here -- this sort of thing has lots of nuances).  Likewise, as to the patdowns, they are more intimate than the run of the mill sort of thing  but as noted above, in other contexts, intimacy is violated too.

Ultimately, as Arlington notes, the whole privacy thing on some level boils down to personal opinion.  And, Chris Hayes was right last night to have mixed feelings about the whole thing overall.

May It Please The Court (Peter Irons)

Re-listening.  Some sloppiness, including some simplistic analysis and mislabeling justices.  Still, worthwhile effort, especially in the 1990s.  And, you want activist? Try this attempt to overturn Roe by twisting a minor regulation after interpreting the others narrowly!

Bye Old Man

This seems patently obvious for the Vikings; not saying it will happen.

Lunch Quickies

But what Tom Coughlin called "a callous disregard for the football" cost the Giants (6-4) again. They now have a startling 30 turnovers through 10 games and a turnover ratio of minus-8.

Yup. Meanwhile, if true, this Mets fan wanted more of a spark.  Funny Rachel and Anne on SNL and the political satire hit the mark too. 

Jets Play With Bottom Feeders Again

Given the number Buffalo (sic) did on the Bengals, the Jets can toy with mediocre teams (who have talent but not enough) again on Thursday. How else to explain that defense fail in the 4Q?  The Giants had chances (again) but (again) choked.  Helps some Jags are next.

Road Trip!

This is a fun and interesting account of Truman and his wife taking a trip on their own in 1953, while the author provides some color commentary of sorts along the way.  Nice Xmas idea.

Brandin Rackley

Guess who was on cable last night, this time playing an American?  Actually, seriously, she is pretty talented.  She is quite good in a stand-up routine under her married name.  She provides an amusing story about filming the movie here. Comes off as a fun girl. Not fake.

Nah Prof. Amar, Let's Stick With Discouraging the Use of Torture

Akhil Reed Amar is over at Slate providing his own spin on what "the Founders" thought about things, this time in response to the Ghailani verdict.  I have read him some, and his fresh perspective is often quite good, particularly if we don't assume it necessarily is exactly what "the Founders" thought.  But, sometimes he jumps off the rails, and his conceit (it comes off this way) of trying to make us assume that his spin is actually clearly what they thought (it gets a bit annoying) is sometimes trouble.  You can read what I said over at the fray to that article, but a taste of what turned me off:

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable. For example, even an innocent defendant, if forced to take the stand, might sweat, stutter, or get confused, and might thus be made to look guilty. But in Ghailani's case, no one tried to put him on the stand. Rather, the government wanted someone else to testify—and the Fifth Amendment simply has nothing to say about this question. (More here on the basic purpose and limits of the Fifth Amendment.)

First, there is not clear determination what "the Founders' Fifth Amendment" is that won't divide many experts and given all of the water under the bridge since then, it should be taken with a grain of salt. We have Our Fifth Amendment now, which includes a couple more centuries of experience. Second, the concern was that evidence obtained from torture would be unreliable. Why this suddenly changes when it isn't the defendant's own testimony is unclear.  Citing what he might do on the stand is misleading overall -- that's not the only place where the concern arises. Finally, avoiding torture overall is relevant. This includes benefiting from the crime or aiding and abetting the process; this is so even if the jury wants to do so:

For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.

Again, the guy was convicted and was being held as an enemy combatant anyways.  The judge noted this fact as well as  that in this case it was granted that during the years of being in a proverbial black hole that he himself was coerced (at best; tortured at worst).   Given that, I really can't assume the whole process wasn't tainted given the mentality used, even if some of the evidence (who knows? do you have the evidence involved in front of you? I don't) is true and all.  But, focusing on narrow things like the reliability of the individual evidence is a rather narrow view of things.  The ultimate end is to avoid torture or benefiting its practice by allowing its fruits into evidence.  Does crime suddenly pay now?  Finally, if we want to determine what "the Founders" (yeah, that sounds fake) thought, English Law Lords a few years back held:

"The principles of the common law, standing alone, in my opinion compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice."

As I note over there, I'm with Justice Clark (who wrote Mapp v. Ohio, which applied the exclusionary rule to the states, after it was appied to the federal government since at least the 1910s), a former U.S. Attorney General, and fairly conservative on the Warren Court.  The rule is necessary to protect the Fourth Amendment, especially since alternative techniques simply do not work in the real world.   Outside of Professor Amar's ivy tower.  But, torture is an even easier case, as shown by UK and Canadian practice of treating it differently even under their somewhat more loose evidence inclusion rules.

Finally, the facts of this case are particularly bad to use as an avenue for Amar's campaign.  I'm still with Samuel Dash (The Intruders), perhaps best known as a Watergate chief counsel, in thinking him wrong generally.  But, using this case in particular is a bit stupid.  Adding to the meme that something wrong happened, at least to the degree of the government offering him too many rights or whatever.  It isn't even a matter of the Self Incrimination Clause, since a military commission with looser rules would have likely excluded the evidence. 

Sorry, Professor.  Fail. 

Quickies

Dolphins not showing much tonight.  Meanwhile, after named favorites by some to go all the way, now the Giants aren't even favored to win their next game.  And, reportedly (via Maddow) Murkowski will vote for DADT recall. That answers one question!

Murkowski wins, Still a Weenie

Rachel Maddow fans care about this development because it allowed the executive producer to shave off his beard.  But, when Chris Hayes (filling in for LD) after her show asked Murkowski's position on two matters coming up, she hedged.  You just won ma'am.  Why not?

The Ghailani Verdict

Amy Davidson had a good account, including a few hopeful signs regarding our jury system.  But, other media sources will speak of "major setback for Obama administration plans" front and center.  Meanwhile, we hear Ghailani thought the trial was "fair." Fail?