Tuesday, April 28, 2009

Authoritarianism is contagious

In 1918, when the Spanish flu raged across the word, frightened officials in many communities responded with tough restrictions on public assembly and even personal interactions. Newspapers were censored, whole towns quarantined and beloved pets slaughtered in a pointless effort to stop the spread of illness. As the words "swine flu" begin to dominate headlines, it's worth remembering that nothing fuels restrictions on liberty like fear, and few things are scarier than mass outbreaks of deadly disease.

Actually, the word "Spanish" got hung on the influenza pandemic of 1918 entirely as an outcome of civil liberties violations. Most major countries at the time were caught up in the First World War and had used the hostilities as an excuse to impose press censorship. When the flu broke out, controls were imposed on reports of disease as well as on military affairs.

But Spain was neutral in the war and had no censorship in place. As a result, the growing pandemic received more press coverage there than in many other places that suffered as much or more from the flu. More headlines about the outbreak got the bug tagged as the "Spanish flu," and the sunny country suffered an unfair affiliation because of its relative respect for free speech.

But restrictions went well beyond censorship. In my state of Arizona, the city of Prescott early on closed theaters, saloons and pool halls, with all public gatherings soon forbidden. Nearby Jerome, a mining town which was especially badly hit, was quarantined by armed guards placed along all the roads leading into town. And in Phoenix, police shot dogs and arrested people who ventured outside without wearing gauze masks. Both measures were ineffective (dogs didn't carry the disease and viruses pass right through gauze), rendering the results unjust for the unmasked and tragic for the city's canine population.

There was reason for the fear, of course. As much as a third of the world's population fell ill. Once the pandemic ran its course, an estimated 50 million people around the world were left dead. Of those, at least 675,000 were Americans.

Obviously, given the sheer numbers of the afflicted, medical personnel were stretched to the limit. In Buffalo, New York, even former nurses who had retired from the profession were ordered to report for duty -- by what authority is anybody's guess.

Actions taken during the 1918 pandemic are still relevant today because public health officials continue to look to that catastrophe for guidance in what does -- and does not -- work during health emergencies. In "Local Governance and Pandemics: Lessons from the 1918 Flu," a law review article published last year, Harvard Law School's Jason Marisam examined varying responses across the country to the 1918 pandemic. He concluded by specifically favoring the tough measures taken in Arizona over more libertarian approaches elsewhere.

[S]ome liberal challenges to public health efforts may needlessly create political tensions and cost lives by delaying or prematurely ending valuable health measures. The corollary to this observation is that a strong and quick public health elitist response may best preserve order and health in an emergency.

Marisam does concede, however, that "such strong approaches may step on individual liberties and become harder to enforce as citizens become weary of the coercive behavior." He suggests public participation as a means of softening resistance, though only after an authoritative initial response.

Marisam draws heavily from "When Terrorism Threatens Health: How Far are Limitations on Personal and Economic Liberties Justified?," an earlier, much-cited article by Lawrence O. Gostin, of the Georgetown University Law Center - O'Neill Institute for National and Global Health Law, who argued:

[A]sking whether the government should have liberty-limiting powers is the wrong question. ... The right question is, what powers should the state have to deal with each level of risk?

Gostin is, not surprisingly, a booster of the Model State Emergency Health Powers Act, a measure intended to standardize responses to situations like a future pandemic. Already incorporated in whole or part into the laws of most states, the model legislation takes a decidedly authoritarian approach, allowing government to: control supplies of food, fuel, clothing, medicine and other commodities; to restrict people's movement; to impose quarantines; to seize property (with compensation); to draft medical personnel; and to take a variety of other measures not normally considered the prerogative of a limited state in a free society.

Don't like what was done to you and yours during the "emergency"? Too bad. Government officials can't be held liable for deaths, injuries or property damage inflicted during the enforcement of the law's powers.

Maybe that's what's necessary for dealing with another potential flu pandemic or a similar health emergency. Maybe. Hopefully, the swine flu outbreak of the moment will be another false alarm, and we'll never find out if authoritarianism is really what it takes to preserve public health.

But the lessons of 1918 are clear: fear of disease breeds restrictive government actions. Public health authorities today have taken 1918 to heart. If or when the next pandemic occurs, people will be frightened, government officials among them. Scared, they'll turn to quarantines, armed guards, restrictions on assembly and other tough measures that have already been codified into law.

With luck, we'll get a little safety in return for the lost liberty. But we'll certainly lose that liberty.

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Sunday, April 26, 2009

Constitutional lessons I learned at school

Earlier this month, sheriff's deputies in Harford County, Maryland, showed up in the parking lot of Harford Technical High School with drug-sniffing dogs and set the animals to sniffing for contraband. The search was random -- suspicionless and warrantless -- but hardly unique in American public schools. Across the country, students have long labored in an environment where many Fourth Amendment protections magically don't apply. Now, though, a case before the Supreme Court may help establish just how far school officials can go in pawing through the possessions -- and even the underwear -- of their youthful charges.

"Reasonableness" is the standard that guides those parking lot searches, and "reasonableness" is at issue before the Supreme Court in the case of Safford United School District No. 1, et al., v. Redding. The problem, as always, is that what strikes some school administrators and law-enforcement officers as reasonable may strike students and parents as completely insane.

Which brings us to Savana Redding.

In 2003, at the time of the search in question, Savana Redding was a 13-year-old eighth-grader at Safford Middle School in the small town of Safford, Arizona. School officials got a tenuous tip that Savana had given a friend some ibuprofen -- the stuff in Advil and Motrin. That was against school rules, so the girl was detained by Assistant Principal Kerry Wilson. She was subjected to a strip search by two female school employees. The search turned up nothing.

And Savana and her family sued.

The case worked its way up to the Ninth Circuit Court of Appeals, which examined the facts and concluded (PDF), "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil."

We hold that Savana’s rights were clearly established at the time that Assistant Principal Wilson, in his official capacity, initiated and directed the strip search. The record before us leaves no doubt that it would have been clear to a reasonable school official in Wilson’s position that the strip search violated Savana’s constitutional rights...

The case of Redding before the Supreme Court is an appeal by the school district from the Ninth Circuit decision.

The "reasonable" standard for schools, so different from the "probable cause" standard that guides most search and seizure cases, was established in New Jersey v. T.L.O. In that case, the Supreme Court ruled that, while the Fourth Amendment does apply to school officials, they're held to a lower standard than law-enforcement officers. That's because "[a]gainst the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds." The court added, "The warrant requirement, in particular, is unsuited to the school environment."

So, if the Fourth Amendment applies, but not so much, what constitutes an acceptable search? To answer that question, the court created a new standard out of whole cloth:

[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S., at 20 ; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid.

Looking askance at what his colleagues had wrought, Justice Brennan warned in dissent:

Today's decision sanctions school officials to conduct fullscale searches on a "reasonableness" standard whose only definite content is that it is not the same test as the "probable cause" standard found in the text of the Fourth Amendment.

He was right. "Reasonableness" is in the eye of the beholder, and what we behold largely depends on whether we're in positions of authority, or among those subject to authority. That's how we ended up with K-9 patrols in school parking lots and teenage girls shaking out their bras during searches for headache tablets.

Loose guidelines for searches have actually been institutionalized. The Harford County suspicionless searches are conducted well within the advice formally provided by the U.S. Department of Education.

If drug-sniffing dogs can be unleashed to alert with a "a bite, bark or scratch" on any car that contains a roach (or a hamburger wrapper), it's not that far a step to pawing through a student's underwear based on a vague assertion by another student.

The Supreme Court itself, in another case involving the power of school officials, once warned:

That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

That's a fine sentiment. Too bad the court didn't hold it to heart in T.L.O. We have now raised just about two generations of public school students in an environment in which vague standards and meaningless restrictions on officials' power are considered "reasonable." Those students are now adults, applying the lessons they learned in school to the world around them.

There's no guarantee that the Supreme Court will set tougher standards in Redding. It may set no standards at all, and side-step the issue entirely by granting the Safford officials qualified immunity from lawsuits without touching on the constitutional questions.

But Redding is the best chance in a long time to draw a line that firmly establishes some indignities committed by state officials upon public school students as beyond the pale. With school officials increasingly conducting random, warrantless searches of their charges, we need to know whether our schools are subject to constitutional protections, or whether they are just little police states.

Really, if it's acceptable to strip-search Savana Redding, there's no place else to go.

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Thursday, April 23, 2009

Car search decision makes driving look better than ever

If you're unlucky enough to get arrested, the police can only use your handcuffed plight as an excuse to search your car and its contents if you're close enough to touch the thing, or if they reasonably believe evidence of your crime might be rattling around the coin tray or the glove compartment. That's the gist of yesterday's U.S. Supreme Court decision returning an iota of privacy protection to the vehicles in which we spend so much of our time -- a small shield against state power that largely sets automobiles apart from the competition.

The be-robed nine's decision in Arizona v. Gant (PDF) limited the scope of a 1981 ruling in New York v. Belton that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."

In Gant, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, upheld an earlier Arizona Supreme Court ruling that a warrantless search of Gant's car after he had already been arrested for driving with a suspended license was unreasonable. Handcuffed and confined to the back of a police car, Gant had no access to any weapons in his car, or to any evidence of his crime that he might destroy. As a result, say Stevens and company, police had no good reason to bypass the process of getting a warrnt. The cocaine discovered during the warrantless search, therefore, can't be used as evidence against him.

Writing for the majority, Stevens notes that the court accepted the case to clarify the law about vehicle searches. He quotes Justice O'Connor's observation in Thornton that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.”

Basically, in most jurisdictions, vehicles have been treated in recent years as rolling exceptions to the Fourth Amendment.

The Arizona Supreme Court decision was a rare break from the prevailing expansive application of the search rule established in Belton, and gave the U.S. Supreme Court a chance to revive search and seizure protections on the roads.

Stevens and company take the opportunity to endorse the Arizona interpretation, with Stevens writing:

[W]e reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” ... In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.

It's noteworthy that the justices themselves acknowledge that this decision is a rare one in which search and seizure protections are expanded rather than contracted for occupants of automobiles. They took the case for that very reason.

As a result, if you're unlucky enough to be arrested for a traffic violation, it's not carte blanche for the cops to go pawing through your backpack or purse for stray joints or an unlicensed pistol.

Contrast this decision with the growing scope accorded to police to conduct suspicionless searches of passengers and their belongings on airplanes, buses, trains and in urban mass transit systems like the New York City subway. All airline passengers are, of course, subject to sometimes humilating inspections of their persons and property, as well as limitations on what they can carry. Passengers on Amtrak and on subway systems in some cities must also submit to random searches or else abandon hopes of travel. Technically, passengers on private bus lines can refuse police requests to search luggage (common in some areas), but few people know that and fewer still are willing to stare down a cop while standing on the Constitution.

With photo ID requirements now the rule for Amtrak, It's increasingly difficult to even travel anonymously, without leaving an electronic trail indicating your whereabouts.

Automobiles then, imperfectly shielded though they are from intrusive officials, provide the best degree of privacy and protection from unreasonable search and seizure available to travelers. Yesterday's decision reinforces that special status for cars and trucks as relatively dignified means of transportation for people who don't care to expose their lives on demand to the authorities.

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Wednesday, April 22, 2009

And now, a musical interlude

My beloved Sansa e280 digital music player fried recently, in a very special way. In a rare, but not unknown for e200-series-devices meltdown, the player rendered itself into a read-only device. Not only can't the music selection be altered, but the firmware can't be updated and the player can't even be reformatted. Trust, me, I've tried.

Yes that's weird.

It can still be played, though, so it's something of a museum exhibit of my tastes as of the last sync.

So I went looking for a replacement player that isn't quite such a time capsule. And I discovered a cool deal.

Wal-Mart is quietly selling 8GB Sansa Clip players for $49. Don't bother checking the Website, you have to go to a store. They list for $99.99, and are generally available for about 80 bucks. The Wal-Mart price is ... well ... a screaming deal.

I'm not an iPod fan -- they're overpriced and under-featured for my taste. And the Clip is well-reviewed in the geek press. CNet, among others, likes it better than the iPod Shuffle. Also, despite the weird e280 meltdown, I was really happy with my first Sansa purchase.

So far, I'm digging my new player. Great sound quality, a small screen for picking through music and you're not tied to one software package for loading the thing up. I never used video on the e280, so the smaller player suits me fine.

Oh, and I found protective silicone cases on Amazon for one penny plus shipping.


Tooch offers advice for those afflicted by playground miscreants

Last week, the mother of one of my wife's patients mentioned that her son is being bullied by a gang of kids at school. She asked my wife for advice.

My wife was at a bit of a loss. She's not unfamiliar with the dilemma of bullying, she's just never really come up with a solution. So she made some helpful noises, and then consulted her on-call specialist in you-don't-have-to-be-bigger-just-meaner -- that is, she called me.

So here's a brief rundown of the advice I gave her to pass on to patients and their families, based on my own experiences in those Lord-of-the-Flies emporiums we call public schools (government schools for you Brits).

Bullies generally run in packs. Sometimes there's just one, but it's usually some sadistic asshole and his favor-currying henchmen. You can't take on the whole pack, and it's usually the fact of that pack that's the most intimidating -- a mass of howling, evil cannibals thirsting for your humiliation.

But you don't have to take on the pack, and while you do have to fight, you don't have to win.

Look for the ringleader. He (I'm assuming "he" for ease of pronouns -- make adjustments as necessary) is often prematurely tall and filled out, not-so-bright, and a cruel son of a bitch. He participates in the bullying, but really specializes in egging on the other kids.

He's the one that matters.

If you can do some damage to the ringleader, you can end the bullying -- or at least shift it off to some other hapless victim. The next time the pack comes after you, don't worry about the minions. Get close to the ringleader, and then go for the softest, most vulnerable spot you can reach.

Remember, "rules" are for boxing matches. They have no place in fights. So if you don't have any faith that your punch has enough oomf to make an impact, go for the bastard's throat with a pencil, stab him in the solar plexus with a ruler, or swing a textbook at his jaw (the nuts make a more difficult target than advertised).

The idea is not to win; it's to inflict pain.

When I was in the fifth grade, one of the class bullies decided that it was my turn to play target and came at me with two of his buddies. It was winter in New York, so they grabbed my wool cap planning to play toss in a circle while I chased them helplessly around and around, providing great merriment for all, except your truly.

I didn't play that game.

Instead, I charged the ringleader and proceeded to punch him in the face until we were pulled apart. He got in some licks too -- I got a chipped tooth for my troubles. But his mouth was swollen and purple for two weeks after that.

And I was never targeted again.

You see, bullying is only fun if the target doesn't retaliate. If the bully ends up with a split lip or a broken nose, it loses its entertainment value.

Hey, you're getting pounded anyway. You might as well get in some licks of your own.

Yes, I know that the disciplinary and legal environment has changed since I was a kid and passive submission to the worst abuse is now required in most schools. Fuck that. So maybe the cops get called on a juvenile fighting complaint. Oh well. Even if the authorities want to be completely ridiculous, the record can usually be expunged before it matters.

And that's as good an excuse as any to get out of that tax-funded holding pen and get a real education someplace else.

That's better than life as a punching bag.

The Second Amendment -- coming to a state near you

Last summer, when the U.S. Supreme Court recognized what everybody else already knew -- that the Second Amendment protects individual rights -- the battle over the right to bear arms was far from settled. In particular, courts still had to determine if the amendment protected individuals against restrictive state laws, as well as against the federal government. Now, the influential 9th Circuit Court of Appeals has chimed in with a resounding "yes," saying the Second Amendment has the same status as the First and Fourth Amendments in protecting Americans' rights.

What's at issue here is a concept called "incorporation," which is bound to cure insomnia in most people, but means everything in the world of constitutional law. Basically, when the Bill of Rights was originally written, it applied only to the federal government. After the Civil War, the Fourteenth Amendment extended the Bill of Rights' reach to the states, though legal scholars still get into angry tussles over just which clause in the amendment does the heavy lifting (I did mention insomnia, right?): the due process clause or privileges and immunities.

The Supreme Court has also been selective in incorporating the Bill of Rights for reasons that make absolutely no sense whatsoever. Really.

That said, incorporation has been the big question hanging over last summer's decision in D.C. v. Heller, recognizing that the Second Amendment protects individual rights, not some sort of vague communal right.

In a decision released today, in the case of Nordyke v. King (PDF), the 9th Circcuit Court of Appeals takes a big step toward resolving remaining questions about the scope of Second Amendment protections. Writing for the court, Judge Diarmuid O'Scannlain first notes that Heller abrogated the appeals court's earlier holding that the Second Amendment protected only a collective right. He then notes:

[I]f the suspension of trial by jury, taxation without representation, and other offenses constituted the most offensive instances of British tyranny, the ability to call up armsbearing citizens was considered the essential means of colonial resistance. Indeed, the attempt by British soldiers to destroy a cache of American ammunition at Concord, Massachusetts, sparked the battles at Lexington and Concord, which began the Revolutionary War. For the colonists, the importance of the right to bear arms “was not merely speculative theory. It was the lived experience of the[ ] age.” ...

whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.

Ultimately, and importantly, O'Scannlain writes:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

So, at least for the large region of the country covered by the 9th Circuit -- the entire West Coast, plus Idaho, Montana, Nevada and Arizona -- incorporation of the Second Amendment is a settled issue (unless the Supreme Court says otherwise).

But how extensive are those protections? That's a valid question to ask, given the outcome of Nordyke. While the court incorporated the Second Amendment, it ruled that the plaintiff wasn't protected by that amendment from a local law that essentially bars the presence of guns at gun shows held on public property. While that doesn't strike at the very core of the right to bear arms -- the ability to own weapons for self-defense -- it's not a fringe consideration either.

The court's rationale isn't especially convincing. Constitutional scholar Eugene Volokh, a professor of law at UCLA, says, "I'm inclined to say that the panel's general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be." In short, the court suggests that "open, public spaces" are "sensitive places" like schools or a government buildings, and so restrictions can be placed on the exercise of certain rights, such as the possession of firearms. That's a sweeping statement that could limit weapons possession to private homes and businesses.

It's good to have the Second Amendment incorporated so that it protects us against state and local governments. But we have yet to discover how much protection it will provide.


Monday, April 20, 2009

Civil liberties for me, but not for thee

Last week brought us two unrelated stories about nasty encounters between people going about their lives and law-enforcement authorities. One was a college-age environmentalist who was Tased and arrested by police in Eugene, Oregon. The other was the pastor of an Arizona church who was Tased and beaten by Border Patrol agents at a checkpoint well within the country. In both cases, the treatment of the men seemed not just brutal,but also largely unprovoked.

And in both cases, some commentators reserved their sympathy, because the victim was, to their eyes, the wrong kind of person.

Perhaps Gawker summed up the phenomenon best in a piece about Pastor Steve Anderson called, "This is Not the Civil Libertarian Hero You're Looking For." Wrote John Cook:

[I]t sure seems like he was wronged by overzealous Department of Homeland Security goons. It's the war on terror and war against Mexicans gone mad! Liberals should be outraged. Conservatives should mock them for that outrage.

But wait -- here's a video of him calling Barack Obama a devil. He's a Republican! And the jack-booted thugs at DHS are calling all God-fearing Republicans terrorists. Conservatives should be outraged! Liberals should mock them for that outrage. Wait -- are DHS checkpoints along U.S. highways good or bad now? We're so confused.

As befits Gawker's usual tone, it's hard to figure out whether the author has an actual point to make. But his piece ably presents the notion that sympathy for people whose rights may have been violated is reserved for those with the "right" ideology and affiliations. Registered to vote with the other team? Too bad for you -- get lost.

In cruder form, that notion is captured in comments on news reports about the cases. At the Register-Guard, one genius passing opinion on the Tasing of Ian Van Ornum, who rode the lightning twice while lying, restrained, face-down on the sidewalk said, "Just looking at this guys hair tells me that the police were justified."

In the comments on my own column about Anderson's encounter with Border Patrol and Arizona highway patrol officers, which resulted in 11 stitches, a reader said, "I have a hunch this Anderson boy provoked this incident and, most likely, is not being truthful. Anderson is a classic religious kook, a poorly educated Jesus freak."

Maybe I'm being old-fashioned here, but I'm under the silly impression that our rights are dependent on our being human and having a pulse -- not on party affiliation, culture, religion or whether or not we approve in any way of the people about to enjoy a close encounter with the authorities.

Look, when we treat civil liberties, or protections of any sort against the powers-that-be, as special privileges to be doled out only to those with the right opinions, then we all lose. The authorities are only too happy to exploit that attitude as a wedge to divide and conquer us all, piecemeal. Between the unsympathetic political opponents of whoever has been abused, and the habitual fans of state authority who sympathize with nobody who confronts the authorities (you know, the people who comment, "When A Uniformed Officer (Read Authority Figure) Tells You To Do Something, Keep Your Smart Mouth Shut And Do It."), the government can always command a majority against one of their victims and his few friends.

That is, they can if we play that game.

We don't have to. We can -- and should -- treat protections for our rights as setting the basic ground rules for dealing with each other. With those rules established, we can get about the business of vilifying one another and engaging in the usual political and cultural combat. But those rules are fundamental -- without them in place for everyone, we have no protections for ourselves.

It's up to you, folks. You don't have to like other people to respect their rights. But if you're going to consider civil liberties and individual rights as special privileges to be reserved only for your tribe, you better hope that your buddies are in power -- forever.

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Friday, April 17, 2009

Most likely to secede

Texas Governor Rick Perry is getting a lot of flack for his off-hand, tax-day comment that Texans might one day want to leave the union, and that the state's original treaty with the United States allows it to secede if its people so choose. Critics have him dead-to-rights on one point: Perry got the treaty wrong; Texas negotiated the right to split into five states, but not to regain independence. But those critics engage in wishful thinking by saying this means that Texas "can't" secede. Honestly, anything is possible -- if you can make it stick.

Look, no country likes to lose territory, and politicians rarely make it easy. But borders aren't forever. Countries get bigger, they get smaller, they split and sometimes they disappear forever. These changes occur no matter what is written in law books or inscribed in constitutions. The border revisions, more often than not, take place while bodies are cooling on the battlefield.

The United States is no exception. So far, the U.S. has grown bigger through the use of force, and it squashed the one serious attempt by states to leave the union (we're looking at you, Texas and friends).

But someday, 50 or 100 or 200 years from now, the people of some part of the country will once again want to split away. It might be Texas, it might be Vermont, or it might be your mom's backyard -- it doesn't matter. This eventually happens in all countries. If that restive region chooses a moment when the federal government is a bit weak, because of national decline, or war, or depression, it will stand a better chance of success than we can imagine right now.

Still, the federal government and many average Americans will react with outrage. Troops will be mobilized.

Then, the dissident region will whip out a treaty with a foreign power the U.S. can't afford to fight, or it'll detonate an atomic bomb in orbit, or it'll otherwise show that it has the ultimate trump card to play against any legal argument.

And then the world will have its newest independent nation.

Rick Perry probaby won't be around to see it happen. But someday, somebody like him is going to demonstrate the old truth that legal "can't" becomes realpolitik "can" if you're tough enough to back up your talk.


More fun at a Border Patrol checkpoint

The pastor of a Baptist church in the Phoenix area says he was stopped at an internal Border Patrol checkpoint, Tasered and beaten. Steven L. Anderson, of the Faithful Word Baptist Church in Tempe, Arizona, was returning from San Diego on Interstate 8 when he was stopped at a Border Patrol checkpoint -- a common but controversial feature of what the ACLU calls the "Constitution-free zone" within 100 miles of the U.S. border, where law-enforcement authorities conduct suspicion-less searches in defiance of traditional protections for individual rights.

Anderson says that, after he stood on his constitutional rights and declined to answer questions at the checkpoint, Border Patrol agents brought over a dog and claimed the animal had sniffed out either drugs or a human body in his trunk. Anderson refused to permit a search, at which time DPS (highway patrol) officers were summoned. The officers broke out his car windows and the pastor was Tasered and beaten before being arrested.

Injuries are plainly visible on Anderson's face in a video he made after the incident.

Anderson identifies three of the Border Patrol agents as C. Diaz, B. Griffiths and E. Gomez. He is due in court today, where he plans to plead "not guilty" to all charges.

More information is available at the Anderson family blog.

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The other side's protests are never legitimate

The usual suspects came out of the woodwork to attack the hordes who braved occasionally hideous weather to protest against taxes, government spending and a sometimes messy array of other perceived policy flaws. The tea parties don't represent legitimate grassroots grievances, the critics charge, or they've been taken over by nutcases who just don't like the president. This is all par for the course. Some pundits don't like it when amateurs dabble in political speech; others can't believe that any significant segment of the country would dare to disagree with them.

Writing in the Los Angeles Times, long-time political commentator Marc Cooper says:

Whip out your Lipton and don your tinfoil hat and join the protest against ... against ... against what exactly? ...

Then again, this rash of tea parties is being organized not only by the pseudo-journalists at Fox News (with Glenn Beck, Neil Cavuto and Sean Hannity actively stoking the flames) but also by FreedomWorks, a conservative lobbying outfit headed by former House Majority Leader Dick Armey. I suppose it was Armey's constitutional if morally dubious privilege to have built an entire political career out of defending the wealthy.

We get it, Marc. The protesters don't repesent your concerns, and the protests were pulled together by people you don't like, so never mind that simultaneous demonstrations drew large crowds across the country.

To Cooper's credit (if you can call it that), he has the virtue of being consistent. Back in 2002, when anti-war sentiment was the grassroots cause of the moment, he took demonstrators to task for being organized by the wrong people and for incorporating extraneous concerns. In the pages of the LA Weekly, he wrote:

For fundamentalist is the most polite and diplomatic characterization I can attach to a small choir of leftists who as much as declared jihad on me and a couple of other writers when we suggested that at least a tad of critical thought should be applied in building a peace movement.

With the Bushies blindly pushing for conflict with Iraq, we had argued, it's going to take a very big, a very broad and — yes — a very mainstream anti-war movement to maintain the peace....

Just as I don't want George Bush making war in my name, I don't want apologists for Saddam Hussein like Ramsey Clark going on TV anymore speaking in my name for peace.

In the future, we should let Marc organize all our protests so that they're more photogenic and promote the right message.

That's not to say that radicals and nuts didn't attach themselves to the peace movement -- they did. But that comes with the territory when protest movements aren't pre-packaged, but take on a life of their own. If it's any consolation, tea partiers embarrassed by the presence of immigrant-bashers and conspiracy theorists can point to the communists and dictator-strokers who plagued opponents of the war in Iraq.

Most criticism of the peace movement came from pro-government conservatives, though, who sought to marginalize anti-war activism as if real Americans couldn't possibly oppose military adventurism. Back then, Rush Limbaugh accused anti-war protesters of raising phony concerns and said that politicians questioning U.S. involvement in Iraq were "insulting soldiers all over the place."

David Horowitz said protesters had a "desire to hurt this country and its citizens."

These days, we have Paul Krugman claiming the tea party protesters are full of "crazy stuff" and that "the tea parties don’t represent a spontaneous outpouring of public sentiment. They’re AstroTurf (fake grass roots) events..."

Dana Milbank charges that the anti-tax protests were a "washout" that served up a "noxious brew" with "sinister overtones."


The fact is that, when thousands and tens of thousands of people show up to express their opinions and their anger, the grassroots are speaking. It's not all the grassroots of course; populations don't speak with one voice or hold one opinion. But all the efforts of George Soros or Newt Gingrich can't make people turn out to carry signs and listen to speakers in the rain if those people aren't ticked off about something.

Delegitimizing broad-based political opposition is an old tactic. Some people, like Marc Cooper, do it because they're elitists who don't trust the grassroots with something so powerful as opinions of their own. And others, like Krugman, Milbank, Limbaugh and Horowitz, are cynical political apparatchiks, who attempt to strip legitimacy from any movement that doesn't support their own ideas. They're especially aggressive in their tactics when defending a status quo that represents their own ideology.

Whatever their motivation, people who would deny public participants in the political process the authenticity of their own viewpoints have nothing of value to say themselves.

Whether or not you agree with the sentiments expressed by the participants, yesterday's tea parties were just as legitimate and grassroots as last year's anti-war protests. They may be right, or they may be wrong, but they're real.

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Wednesday, April 15, 2009

And now, some helpful environmental tips ...

Don't just hug Mother Earth! Dig a small hole in the ground and ...


Anti-state, not just anti-Obama

With thousands of "tea party" tax protests planned around the country on this grim day when we formally surrender a large share of our income to satisfy the ravenous appetite of government, some commentators suggest that tax-protest and anti-government rhetoric has gone too far. One of my own colleagues frets that opposition to the powers that be has crossed the line to actually challenging the legitimacy of the government. Well, I can't speak for everybody, but I do question the legitimacy of the government. I hope the tea party protests are a sign that more people are coming to this point of view.

Says John Zorabedian, the Boston Top News Examiner:

It concerns me that a broad segment of the citizenry has apparently refused to recognize the legitimacy of this government and have opted to take their political opposition outside of the "accepted channels of politics" ...

I started my Disloyal Opposition blog under the Bush administration and have continued it under the new Obama regime, so my contempt for government has nothing to do with the party in power. Not everybody raising heated protests against the government's spending spree and accumulation of power can make that claim. As Anthony Gregory of the Campaign for Liberty, which supports the tea parties, points out:

For eight years, Republican protest of income taxation was scant. Some conservatives complained quietly about Bush’s domestic welfare spending, but all in all they were apologists for the regime we are still paying for. They certainly did not talk about the state as their enemy, as many of them do today. The quickness of their transition to opposition rhetoric has been staggering. ...

Thankfully, there are more Americans than ever who eschew the statism of both right and left, who seek liberty, peace and free markets. Those who resent tax day and are searching for real solutions can join our ranks, rejecting the conservative as well as liberal policies that have gotten us into this mess.

Republican apologists for the Bush years didn't create the tea party protests, and they didn't invent criticism of government. The idea of emulating the Boston Tea Party got a push when CNBC talking head Rick Santelli called for a "Chicago tea party" in a much-publicized on-air rant. That wasn't part of any coordinated effort, though. I'm on a mailing list of bloggers and observed people spontaneously organizing tax-day protests with only scattered and belated assistance from established organizations. A representative of a small-government group sent a query to the list, asking if anybody knew how to reach Santelli, with hopes of getting the broadcaster's support after the fact.

Demoralized GOP functionaries looking for something -- anything -- to reenergize their organization have tried to hang their hats on the tea parties and on the rising tide of anti-state rhetoric. But many of the people issuing the strongest denunciations of the government now were equally harsh about government power and policies during the Bush years.

Economist Robert Higgs, a consistent critic of government power who I frequently quote, has been publicly excoriated for his strong denunciations of policies foisted on us by Congress and the White House. But he has made his criticisms for decades. As he writes:

During the painful years of the Bush regime, we had to endure the slings and arrows of the brown shirts who compose the so-called Republican base. Now that Obama has ascended the throne, the brown shirts of the left are emerging as the more conspicuous barbarians. Thank God it is not the case, as far too many people suppose, that we must be on one of these sides or the other. We can transcend this disgusting political spectrum, placing ourselves neither on the left nor on the right — nor even in the so-called “independent” zone somewhere between them — but rather rising above the entire line and insisting that red-state savagery and blue-state savagery are equally despicable and intolerable.

The problem, ultimately, isn't that "leftists" are in power, just as the problem last year wasn't with the "right wing." The problem, now as always, is that government wields vast power, and it does so with the approval and support of the most powerful political factions in our society. Republicans and Democrats alike bludgeon us with the state when they are in command -- they just have slightly different priorities when it comes to abusing us and and curtailing our freedom.

Simple-minded commentators (and nobody is more simple-minded than a mainstream journalist) insist that we must embrace one faction or another, and that to criticize a government led by one party is to implicily endorse the other party.

But those of us with brains in our heads know that's a false choice. We recognize, as did Leo Tolstoy, that "Government is an association of men who do violence to the rest of us." It remains such an association whether led by team red or team blue.

But we can vote! Isn't a democratic government legitimate because it represents the will of the people?

Not really. Many of us are no more willing to be robbed and bullied by our neighbors than by some dictator or politburo -- and that's even assuming that the democracy works as advertised. But even democracies have a nasty habit of turning tyrannical under pressure. Long before today's financial woes inspired the federal government to subsidize and seize private businesses, H. L. Mencken wrote:

I need not point to what happens invariably in democratic states when the national safety is menaced. All the great tribunes of democracy, on such occasions, convert themselves, by a process as simple as taking a deep breath, into despots of an almost fabulous ferocity. Lincoln, Roosevelt and Wilson come instantly to mind: Jackson and Cleveland are in the background, waiting to be recalled. Nor is this process confined to times of alarm and terror: it is going on day in and day out. Democracy always seems bent upon killing the thing it theoretically loves. I have rehearsed some of its operations against liberty, the very cornerstone of its political metaphysic. It not only wars upon the thing itself; it even wars upon mere academic advocacy of it.

Ultimately, it is liberty that matters, not the administrative means the government uses to decide when and how to violate our liberty. A lack of respect for liberty is what delegitimizes the state.

Because we care about liberty before all other political concerns, many of us have long denied the legitimacy of the government under which we live. I hope that today's flurry of loud and passionate tea parties is a sign that we are welcoming many more converts to our ranks.

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Monday, April 13, 2009

Yes, the new boss really is the same as the old boss

Last week, I reported that the Obama administration is continuing Bush administration arguments that evidence of some government abuses is a "state secret" beyond the reach of the courts. Recently, Justice Department lawyers made just that claim in a case involving allegations of warrantless wiretapping by the National Security Agency. But the Electronic Frontier Foundation, an online civil liberties group which represents plaintiffs in that case, says the Obama administration has also raised novel arguments that the government can't be sued even if it did engage in illegal wiretapping.

According to Tim Jones, EFF's Activism and Technology Manager:

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

The specific language referred to by Jones is found on page 13 of the government's motion to dismiss the wiretapping case (PDF):

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. ...

Congress has expressly barred suits against the United States for damages and equitable relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting relief against only a “person or entity other than the United States.” See 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a). Congress enacted these express reservations of sovereign immunity in Section 223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.

The only exception to sovereign immunity, the Justice Department argues, is "a willful, unauthorized disclosure of information by a Government agent." As a result, the government argues,"the Court lacks subject matter jurisdiction to grant plaintiffs’ claims for equitable relief under FISA, the Wiretap Act, and ECPA pursuant to Section 702 of the APA."

Taken together, the federal government's position boils down to an argument that the evidence people require to prove that their rights have been violated by the government is a state secret that can be withheld from them, inherently crippling their case. And, even if they could acquire the evidence to prove their point, the government can't be sued for whatever it does in terms of wiretapping.

The Obama administration's position is really a remarkable one: It doesn't matter if the government engaged in violations of civil rights, since there's nothing anybody can do about it.

For anybody still hoping that a change of parties and presidents would represent a revival of respect for civil liberties, the government's actions represent a cold rain of reality.

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Thursday, April 9, 2009

Red Cross report details torture of detainees

Torture of detainees at Guantanamo Bay has been systematic, extensive and a matter of deliberate policy, says a report originally prepared in 2007 by the International Committee of the Red Cross. Obtained by journalist Mark Danner, the report, which detailed the complicity of medical personnel in the mistreatment of detainees, has been posted online (PDF) by the New York Review of Books.

Techniques practiced at Guantanamo and elsewhere on the 14 detainees examined in the 41-page report include suffocation by water, prolonged standing with arms chained above their heads, beatings, confinement in a box, sleep deprivation and other tactics that involve both physical and psychological abuse. While written in somewhat technical terms, the report emphasizes that the detainees' treatment "amounted to torture and/or cruel, inhuman or degrading treatment."

While the abuse described in the report is brutal and disturbing, among the more troubling aspects in the Red Cross account is the role of medical personnel, including "physicians, psychiatrists, psychologists, nurses and other para-health staff" in the application of torture.

For certain methods, notably suffocation by water, the health personnel were allegedly directly participating in the infliction of the ill-treatment. In one case, it was alleged that health personnel actively monitored a detainees' oxygen saturation using what, from the description of the detainee of a device placed over the finger, appeared to be a pulse oxymeter. ...

Other detainees who were shacked in a stress stanfding position for prolonged periods in their cells were monitored by health personnel who in some instances recommended stopping the method of ill-treatment, or recommended its continuation, but with adjustments.

The Red Cross report emphasizes that such participation in torture by medical personnel violates accepted standards of medical ethics.

Internationally recognized legal standards were also violated at Guantanamo, not just by the torture, which is illegal under international law, but also by the anonymous and unofficial detention of the men held by the CIA. The report points out that international humanitarian law requires that persons deprived of their liberty be registered, held in an officially recognized place of detention, and be permitted visits by the Red Cross so their condition can be monitored and relayed to their next of kin. "In the ICRC's view, the fourteen were placed outside the protection of the law during the time they spent in CIA custody."

The Red Cross report concludes by, in part, voicing concern about the fate of other detainees held by the CIA who remain unaccounted for.

President Barack Obama has promised to end the mistreatment of detainees approved by the Bush administration, eventually close the Guantanamo Bay facility, and to finally give inmates at the facility trials to determine their guilt or innocence. The current administration is also torn over the degree to which it will reveal its predecessor's formal role in the torture of detainees.

But the Obama administration also plans to continue the policy of holding alleged terror suspects indefinitely, without charges.


Tuesday, April 7, 2009

From now on, youse guys and us is partners, get it?

Organized crime has a long history of "buying into" legitimate businesses, whether the original owners are interested in acquiring partners or not. Those businesses are then redirected to ends favored by the mob, often at the expense of their long-term viability. The actual owners are pushed aside, of course, with little or no hope of winning back control of their companies.

So, is it too much to compare recent actions by the government to those of organized crime? You tell me. From Stuart Varney, writing at the Wall Street Journal:

Here's a true story first reported by my Fox News colleague Andrew Napolitano (with the names and some details obscured to prevent retaliation). Under the Bush team a prominent and profitable bank, under threat of a damaging public audit, was forced to accept less than $1 billion of TARP money. The government insisted on buying a new class of preferred stock which gave it a tiny, minority position. The money flowed to the bank. Arguably, back then, the Bush administration was acting for purely economic reasons. It wanted to recapitalize the banks to halt a financial panic.

Fast forward to today, and that same bank is begging to give the money back. The chairman offers to write a check, now, with interest. He's been sitting on the cash for months and has felt the dead hand of government threatening to run his business and dictate pay scales. He sees the writing on the wall and he wants out. But the Obama team says no, since unlike the smaller banks that gave their TARP money back, this bank is far more prominent. The bank has also been threatened with "adverse" consequences if its chairman persists. That's politics talking, not economics.

In the end, an offer you can't refuse is an offer you can't refuse.


Tasers don't pay for themselves, y'know

Tax day is almost upon us, so it's a good time to reflect on just what it is we're paying for when we cut our checks to Uncle Sam (or just watch the growing deductions from our paychecks). What does it mean to be a good citizen? And how does our payment of taxes fit into our obligations to society and the government? Filmmaker David McElroy, a former newspaper journalist, takes on exactly that topic in his educational video about good citizenship. The video is below.

If you didn't have time to watch the full presentation, here's the film in a nutshell: The government needs resources in order to boss people around, meddle in the world around us, tick off our neighbors, subsidize bad behavior and, ultimately, come back and extract more taxes from you in order to address the mess it created with more bad behavior.

I mean, really, how could the government afford to do all the important things it does, like detain suspects indefinitely, tell you what you can't smoke or eat, and paw through your underwear at the airport if it didn't mug you on a regular basis? Tasers don't pay for themselves, you know. And those millimeter-wave x-ray spec scanners at the airport are expensive.

If you're even slightly successful, you better learn to love that mugging. According to the latest CBS/New York Times poll, 74% of your fellow Americans support higher taxes on the "rich."


TSA sorry ... well ... not really ... for detaining Ron Paul staffer

The detention by Transportation Security Administration agents of a staffer with the Ron Paul-backed Campaign for Liberty at Lambert-St. Louis International Airport became a cause celebre last week -- in part because the detainee secretly captured an audio recording of his interrogation on his cell phone. On its official blog, the TSA has chastised the agents for their conduct, while still defending the holding of passengers for such seemingly innocuous reasons as the possession of substantial sum of cash.

In the recording, parts of which were played on Andrew Napolitano's Fox News television show, and a more complete version placed online by the Washington Times, Steve Bierfeldt, Director of Development for the Campaign for Liberty, can be heard being aggressively questioned in a detention room about $4,700 in cash with which he was traveling. When Bierfeldt asks about his rights and the extent to which he is required to answer questions, agents deride him for behaving "like a child." The TSA agents threaten to call in DEA agents and other federal law-enforcement officers to extend the questioning in response to Bierfeldt's resistance.

On its Evolution of Security blog, the TSA conceded:

A Transportation Security Administration (TSA) employee and members of the St. Louis Airport Police Department can be heard on the audio recording. The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.

While acknowledging concerns about the TSA agent's conduct, the TSA continues to insist that "[m]ovements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected."

It should be noted that the TSA is not a general-purpose law-enforcement agency, but is specially tasked to guarantee the safety of the transportation system. It's mission statement says, "The Transportation Security Administration protects the Nation’s transportation systems to ensure freedom of movement for people and commerce."

While the use of cash is often used (to the dismay of civil liberties advocates) by police agencies as a means of profiling people who may be engaged in criminal activity, particularly drug transactions, it is not illegal in itself and would seem to pose no threat to the integrity of air travel or any other means of transportation.

"We are becoming far too eager to give away our liberties in the face of false security. We want to make our plane and we don't want a five-minute hassle so we are eager to give up our freedom, and that is unfortunate," Bierfeldt told the Washington Times.

Thursday, April 2, 2009

Best publicity for a critic of the police EVER

So the Arizona Republic reports that Phoenix cops raided the home of a man who maintains a Website and blog that are harshly critical of the police department. That man, Jeff Pataky, has apparently cultivated informants inside the informant and broken interesting stories about official misconduct.

Pataky, a former software sales and marketing executive who now focuses his energy shoveling content on www.badphoenixcops.com, said he believes his online criticism of the department - along with past criticisms of police investigations - led officers to serve a search warrant at his home last week.

Police officials said Wednesday that a Phoenix detective prompted the investigation after complaining about harassment, though they declined further comment. ...

Investigators confiscated computer material and other items from Pataky's north Phoenix home, which he considered a threat to quit writing.

"We have heard internally from our police sources that they purposefully did this to stop me," Pataky said. "They took my cable modem and wireless router. Anyone worth their salt knows nothing is stored in the cable modem."

Phoenix Assistant Chief Andy Anderson said the harassment case is unique because of the connection to an unaccredited grassroots Web site. He said the blog is one part of the case, though he did not provide specifics of the ongoing investigation.

"This isn't about the blog," Anderson said. "That's just where the investigation led."

"Unaccredited grassroots Web site"? As opposed to accredited official Web sites? What the hell?

Oh, and "harassment" now sounds like one of those all-purpose complaints meant to justify any official act.

The Phoenix area is home, of course, to Maricopa County Sheriff Joe Arpaio, who capped off his feud with the Phoenix New Times by arresting two newspaper executives at their homes under a highly questionable state law that criminalizes online publication of personal information about law-enforcement officials. State lawmakers are now considering toughening that law.

I thought the Phoenix PD was a bit smarter than Arpaio -- not better, just smarter. After all, Pataky is now getting wide publicity for his efforts courtesy of the best public-relations boost any muckraker could ever hope for. The cops would have done better to leave well enough alone.

For his part, Pataky doesn't appear to be slowing down. He's still running his Website and he's suing the city over the raid earlier this month. Pataky has even published a copy of the internal memo Phoenix City Attorney Stephen Craig issued in response to the lawsuit.

Let me give those links again. Website here. Blog here.

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Politicians without their smiley faces

I'm a late arrival to the independent video journalism of Jan Helfeld, but his exchange with Rep. Pete Stark is absolutely remarkable. It's eye-opening not just for Stark's idiotic insistence that national debt is a measure of nationals wealth (the deeper in the red, the more loaded we are), but also for Helfer's ability to strip away the false mask of geniality that cloaks most politicians' encounters with the press. Stark comes off as arrogant, condescending and abusive.

It's revealing when a government official threatens to throw an interviewer out the window.

By the way, Helfeld has had remarkable success in gaining access to prominent people and asking them tougher questions than they're accustomed to hearing from mainstream reporters.


Wednesday, April 1, 2009

You can rest easy with the feds standing behind your car warranty

The Obama administration has proudly announced that it's putting the full credibility and efficiency of the federal government behind warranties for new GM and Chrysler vehicles (PDF) as these two auto makers become ... err ... politicized wards of the state.

Hmmm ... I wonder what that will be like in practice.