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Version: 1.0
(July 25, 2005)

If you've been arrested, you must have done something wrong

Apr 03, 2012 by Ugh
The WaPo (via AP) reports today on the latest glorious decision of our SCOTUS. The good Mr. Kennedy writes that if people are going to be placed in the general jail population, "courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security." (emphasis added). Query whether someone could ever make such a showing.

Thus, even in this case, where the accused (if that's even the correct term) in the words of the WaPo "was forced to undress and submit to strip searches following his arrest on a warrant for an unpaid fine, though the fine actually had been paid. Even if the warrant had been valid, failure to pay a fine is not a crime in New Jersey," it's just too damned bad. Geez, that sounds kind of unreasonable, what's going on here?

Oh, the WaPo again: In 1979, the Supreme Court upheld a blanket policy of conducting body cavity searches of prisoners who had had contact with visitors on the basis that the interaction with outsiders created the possibility that some prisoners got hold of something they shouldn't have. For the next 30 or so years, appeals courts applying the high court ruling held uniformly that strip searches without suspicion violated the Constitution. But since 2008 and in the first appellate rulings on the issue since the Sept. 11, 2001, terrorist attacks appeals courts in Atlanta, Philadelphia and San Francisco decided that authorities need to maintain security justified a wide-ranging search policy, no matter the reason for someone's detention. (emphasis, once again, added)

Not sure what to say here other than it appears security justifies all sorts of things, even where people should know better.


Apr 04, 2012, 01:15:16 Turbulence wrote:

It is very very strange to see people invoking "security" as a justification for anything without even gesturing in the direction of a cost-benefit analysis. On balkin's blog, there's a post about one of the dissents which points out that out of 75000 people jailed, only three had hidden contraband that could only be detected with a stripsearch, and there was ample reason to search those three anyway....

Apr 04, 2012, 03:59:01 libjpn wrote:

You knew this was coming with Savana Redding decision

Apr 04, 2012, 05:31:28 John Thullen wrote:

I'm willing to compromise with the Supreme Court on strip searches for all IF they came with government-provided prostate exams for the males and pap smears for the females and colonoscopies for all, since the police are gettin all up in there anyhow.

I figure at the rate we arrest people in this country we could screen much of the population within five years, with the black population receiving screenings twice in the same amount of time and that during traffic stops alone.

Apr 04, 2012, 12:25:26 sapient wrote:

Sorry to state the obvious, but people who think it doesn't matter who is elected President just need to count the votes on the court. This stuff doesn't happen by itself. The people of the United States let it happen by electing the wrong people as President.

The Court isn't elected, but its members are "elected" indirectly. It's up to us to fix it, or at least tread water. Obama 2012.

Apr 04, 2012, 23:11:18 John Thullen wrote:

Nothing's obvious:


Apr 04, 2012, 23:21:11 Slartibartfast wrote:

If we re-elect Obama, maybe we'll get more judges that won't engage in unprecedented overturning of legislation.

I can't wait.

Apr 04, 2012, 23:26:04 Slartibartfast wrote:

That said, this was not a good decision IMO. But I thought that about Kelo, too.

Apr 05, 2012, 00:17:16 cleek wrote:

"Nothing's obvious"

Digby and Greenwald sure are.

Apr 05, 2012, 00:21:36 Ugh wrote:

"Digby and Greenwald sure are."

Obvious or predictable?

Apr 05, 2012, 01:15:07 cleek wrote:

it's obvious that their MO is to find reasons to complain about Obama. and even before i clicked the link above, i predicted the post would be a complaint about Obama.

Apr 05, 2012, 03:19:28 sapient wrote:

I never read Greenwald and rarely read Digby.

It's not the job of the Executive in a court proceeding to argue for ceding power, or to argue for an interpretation that makes its job more difficult. It's the Executive's job to make sure that an issue is fully and fairly litigated before the court, taking a zealous position to represent its interests. If the court rules against the Executive, then the Executive is bound by the decision, as future Executives will also be. The legal system works best when issues are zealously argued by two opposing sides, then adjudicated by judges who are faithful to the Constitution and the law, and not to political parties and philosophies.

It was appropriate for the Justice Department to take a position in court that would make its job easier, even if it might push the envelope a bit. The fact that Obama appointed judges who would have reined in that power tells us something about what he would do (both as a judge, and as an Executive, applying the power to a particular circumstance in his discretion, as a matter of policy.)

This is the way the legal system is supposed to work. It tells you something that Obama's appointees would have reined in the power that the Executive argued for, and that Republicans allowed more Executive power against the individual.

Too bad people like Digby and Greenwald and so many other people in this country don't get it.

Apr 05, 2012, 03:55:08 Ugh wrote:

Hooray! for the Obama Administration that appointed SCOTUS justices who voted against the position that ... the Obama Administration advocated in court (and Hooray! for the Obama Administration for advocating that position in court!)!

Apparently there is no such thing as prosecutorial discretion or a duty to "do justice" or just plain "we don't have the time to file an amicus brief" practical decision making here.

All decisions of the Obama Administration, even contradictory ones, are equally praiseworthy.

Apr 05, 2012, 03:58:56 Slartibartfast wrote:

Greenwald, on the other hand, is utter genius when brickbatting Their Guy, but tedious and predictable when criticizing Our Guy.

Apr 05, 2012, 04:32:07 sapient wrote:

"Apparently there is no such thing as prosecutorial discretion or a duty to "do justice" or just plain "we don't have the time to file an amicus brief" practical decision making here."

I don't know what the protocol is for the Solicitor General to "not have time" to take a position in a case. I do think that having a case fully and fairly litigated means that both sides are represented, and that an executive branch usually doesn't take a position to make life more difficult for its employees. Taking a position that the searches are allowed doesn't mean that there isn't discretion to take a more humane approach.

If there's a good faith argument favorable to your client, do you abandon it? Isn't that contrary to your ethical responsibility to your client?

Apr 05, 2012, 05:22:17 Ugh wrote:

Florence was a state case that the U.S. gov't didn't need to take a position in at all if it didn't want to, although since it implicated Federal Constitutional issues it obviously could. AFAICT, SCOTUS didn't ask for the U.S.'s opinion (or at least there's no indication of such a request at the beginning of the DOJ's amicus brief), as it sometimes does. So, "not having the time" was certainly an option.

As to the fully and fairly litigated point, is the participation of the SG necessary for that to have taken place in this case? SCOTUS blog lists 12 AC briefs other than that of the US Gov't. It seems to me the DOJ's participation was more like a thumb on the scale than any kind of necessary balancing of legal arguments.

As for making "life more difficult for its employees," see, e.g., the refusal to defend DOMA in certain instances. How do you suppose that makes, e.g., IRS employees who nevertheless have to deny married filing jointly status (among other tax code provisions) to legally married same-sex couples feel? Not exactly the same thing but pretty effing close. Not to mention that simply taking no position at all isn't making anything more difficult for executive branch employees (indeed, per the amicus brief the US Marshal's Service didn't have a blanket policy of strip searching everyone at all!).

And query who should really be the "client" when the DOJ argues for one position or another? The President? The Executive Branch? The "Government of the United States"? The Constitution? The American People?

Finally, to return to the "do justice" point, the ethical responsibilities of government lawyers differ from those representing private litigants, as surely you must know.

Apr 05, 2012, 08:28:18 sapient wrote:

Just to get this out of the way, the duties of the Solicitor General have nothing to do with how IRS employees "feel".

Amicus briefs aren't necessarily advocating for the particular case at hand - they inform the Court about issues that might be affected by a broad ruling that might affect circumstances that are different from the specific facts of a case.

If you read the brief of the Solicitor General, you'll find that the reason they didn't ignore the issue is that the "Federal Bureau of Prisons operates 116 federal prison facilities, which, along with privately managed and contract facilities, house more than 216,000 pretrial detainees and convicted inmates."

So the United States has a substantial interest in whether pretrial detainees can be strip-searched. To pretend that the Justice department "didn't have time" to consider it is silly - it would be a dereliction of the government's duty to pretend that it didn't have a stake in the outcome.

And, true, according to the brief, "the U.S. Marshals Service] does not currently conduct visual body-cavity inspections of all arrestees upon intake." But "USMS policy allows such searches to be conducted [only] in certain circumstances, including where warranted by the type and security level of the institution and its history of contraband. The United States thus has a significant interest in the Court’s resolution of the question presented in this case."

So, Ugh, do you seriously contend that the United States really should have ignored the case, whose outcome would have affected so many prisoners and institutions?

Basically, reading the brief (http://sblog.s3.amazonaws.c...) is probably a good way to determine whether the United States, represented by the Solicitor General, had a legitimate argument. The argument wasn't that strip searches was good policy in the particular case at hand; it was that, although current U.S. policy "reasonable suspicion" standard (suspicion that the prisoner (a) may be carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk), it provides that “reasonable suspicion” may be based not on circumstances specific to the individual prisoner, but on the “[t]ype and security level of [the] institution in which the prisoner is detained” and the “[h]istory of discovery of contraband and/or weapons * * * in the institution in which prisoners are detained.”

So when the Solicitor General represents the United States, is the Solicitor General a civil rights attorney in every case? Is the Solicitor General representing the taxpayer? Is the Solicitor General representing the prosecutorial function of the executive?

I completely support the minority opinion in the Florence case, especially on the particular fact of the Florence case. But the Solicitor General's brief pointed out some compelling practical problems with the specific "line drawing."

Who, among liberal democrats, doesn't like being a civil libertarian? I certainly prefer that role. But we should also keep in mind that there are some seriously nasty criminals out there, and what might be expected of us if we had to round up people who do serious harm to other people, and work justice from that side of the fence.

I would love to see a serious effort at prison reform, etc. Maybe, Ugh, if Romney wins, it will happen. Really?

Oh, and as to the "ethical responsibilities" of government lawyers, please do tell how Obama lawyers have been unethical or have represented the wrong party.

Apr 05, 2012, 08:31:25 libjpn wrote:

The gov weighing in is baffling. I know that there is a certain amount of jockeying that goes on when they write opinions, is there something similar with the submission of AC briefs?

Any other info you have about how amicus briefs work, I'm all ears.

Apr 05, 2012, 08:33:37 libjpn wrote:

I posted that before I say Sapient's comment, so it was directed at Ugh, but the question is an open one.

Apr 05, 2012, 08:45:04 sapient wrote:

Sorry for the editorial mistakes in the previous post. This is a difficult system to post a lengthy comment and edit (if your eyesight isn't so good, etc.) I'll try to do better.

Apr 05, 2012, 08:57:53 libjpn wrote:

No worries, I'm really sorry I can't get this to work better. Unfortunately, I'm really gun-shy, because in moving the previous incarnation, l hosed the old mysql database and this isn't one of the more common blog software packages, so working on it takes a while.

Apr 05, 2012, 09:17:01 sapient wrote:

libjpn, the rule as to amicus briefs is here:

The purpose of an amicus brief is this: Supreme Court opinions, although they address the peculiar facts of a particular case, affect a greater number of fact situations. Cases are very "fact specific," in that the lawyers on each side of a case are representing their particular clients. Thus, every case primarily considers the very narrow set of facts before it. The Florence case (IMO) is fairly cut and dried in that there was a guy who really should not have been strip searched.

Whether the guy should have been strip searched is one thing. The legal rule as to when, under the Constitution, a person can be strip searched may be another. An amicus brief can enlighten the court on the possibility that, although this particular situation was screwed up, there may be reasons not to say something like "OMG! This situation was really unjust! People should never be strip searched when being brought in for a minor offense!"

I'm stating that in a simple-minded way because that was my reaction when reading the news reports. In fact, I am quoting myself.

An amicus brief might say, "look - this particular situation is screwed up, but consider this: in our prisons, we had XYZ gangster (say Al Capone) who was brought for a tax offense, but we had undocumented reasonable suspicion (that may not be able to be proved in court) that Al Capone was a gangster who had friends who put an explosive device in a small package fitting under some private area of his body, and Al Capone was planning on blowing up the prison.

Or whatever. An amicus brief can bring other arguments to bear on a major decision that can narrow the approach, or allow the justices to consider possibilities that aren't presented by the people whose interests are immediately at stake.

If you read Justice Breyer's dissent, it's possible that he was sympathetic to the Solicitor General's brief. Breyer says that: "In my view, it is highly questionable that officials would be justified, for instance, in admitting to the dangerous world of the general jail population and subjecting to a strip search someone with no criminal background arrested for jaywalking or another similarly minor crime.

'Indeed, that consideration likely underlies why the Federal Government and many States segregate such individuals even when admitted to jail, and several jurisdictions
provide that such individuals be released without detention in the ordinary case.

"In an appropriate case, therefore, it remains open for the Court to consider whether it would be reasonable to admit an arrestee for a minor offense to the general jail population, and to subject her to the “humiliation of a strip search,” prior to any review by a judicial officer."

Basically, Breyer is saying that in this case, it is cut and dried that a Fourth Amendment violation occurred. But he also questions the whole premise: that people arrested for minor offenses are admitted to the general jail population.

So, have you ever been in a situation where you can see that a general policy might be good, but you have issues regarding how it might affect a situation that you know is different from the norm? That's what amicus briefs are for. They're for saying: Look, this is what happens in these cases, so make sure your ruling doesn't screw us over.

Apr 05, 2012, 14:41:50 libjpn wrote:

Thanks sapient, what I was thinking about was the timing of the filing. As I understand it, being chief justice allows you to change your vote to the winning side in order to have the chance to write the opinion, where you can then limit the damage. I'm wondering if amicus briefs have to be taken in the order they are submitted, and if there is an interaction between the various briefs.

Apr 05, 2012, 20:45:13 sapient wrote:

I think there may a bit of interaction among brief writers (at least, judging by the timing that's provided by the court rule). It would seem that the judges could pore over everything before oral argument, and have it all there as reference during the deliberations and opinion writing.

Interesting to ponder what influence friends of the court might actually have. When it has any, it would probably be more in the scope of the opinion than the decision itself. Just a guess.

Apr 05, 2012, 22:17:54 Ugh wrote:

sapient - "Just to get this out of the way, the duties of the Solicitor General have nothing to do with how IRS employees "feel"."

You're the one that brought up whether we can really expect the executive branch to take positions that would make the "life more difficult for their employees."
"So, Ugh, do you seriously contend that the United States really should have ignored the case, whose outcome would have affected so many prisoners and institutions?"

I contend that to the extent the "correct" constitutional outcome is reflected in the opinion of Obama appointed Justices, as you state, then given the procedural posture of the case the SG could have easily decided not to file an amicus brief, given the discretion of the office.

And I'm not sure that doing away with individualized suspicion for strip searches is a "legitimate argument," but I suppose that 5 SCOTUS justices upheld that position makes it so, almost by definition.

On ethics, I was merely pointing out that the standard for zealous representation is different for lawyers representing the government than lawyers representing private litigants, for many reasons.

Apr 05, 2012, 23:02:47 sapient wrote:

Certainly the "zealous" standard for prosecutors includes things like advising the defendant of exculpatory evidence, etc., but I'm not sure government lawyers need to be less zealous in protecting the prerogatives of government, if that's what they're doing in a particular case. If you believe that, I wish you'd provide a cite instead of assuming that we all know it to be true.

I helped represent plaintiffs in litigation against the government many years ago, and the opposing attorneys were quite vigilant in pursuing legal arguments that I felt were generally unfair and unwise from a public policy standpoint. But that wasn't their particular job when defending the Government against the plaintiffs I was helping to represent. They were trying to save their client (the Goverment) money. I didn't think it was at all inappropriate for them to do that, given that they had a good faith argument based on the law, or reasonable extension of the law. It was up to the court to decide whether their arguments were sound, and up to Congress to change the law if it was unfair. It's called "checks and balances." Obviously, it assumes a certain amount of good faith, but it doesn't require the Executive department to abdicate its responsibilities.

And, again, just because the argument is that a strip search without "reasonable suspicion" is Constitutional doesn't mean that it's good policy, or policy that will be pursued. For example, the death penalty has been upheld as being Constitutional, but the policy of the government is that it's not always pursued just because it's available.

One question I have about the facts of the case: why was the guy put in the general prison population for suspicion of failure to appear to pay a fine (which, of course, he was found to have paid)? That, to me, is almost as offensive as the strip search itself. If they didn't put trivial "offenders" into the general prison population, the strip search requirement might make a bit more sense.

Apr 06, 2012, 05:28:51 DonaldJ wrote:

So attorneys representing the executive branch should always grab as much power for the executive branch as they think they can argue for. If an argument is unfair and unwise as a matter of policy, no big deal. They're just doing their job.

I'd always heard that one should expect government to behave this way, but it's the first time I've seen it put forward as a principle. .

Apr 06, 2012, 06:01:15 sapient wrote:

"So attorneys representing the executive branch should always grab as much power for the executive branch as they think they can argue for."

As much power as they can argue for? Meaning as much power as they can justify using legal arguments before a court? What's wrong with that? If they're not entitled to it, isn't it up to the court to decide?

As to wisdom and fairness: most litigation involves two parties who have very different ideas as to the wisdom and fairness of a situation, which is why they rely on a judge whose role it is to impartially determine their legal rights and responsibilities.

You have control of some policies. Is the degree of income inequality wise or fair? Does that mean that if a person of lesser income than you sued you to equalize your income with hers, she'd have a case? Maybe it would be wise. Maybe it would be fair. But she's not entitled to your money. If she has a legal right to your money, she's not "grabbing power" to assert it.

Apr 06, 2012, 12:58:57 DonaldJ wrote:

"Meaning as much power as they can justify using legal arguments before a court? What's wrong with that? If they're not entitled to it, isn't it up to the court to decide?"

This makes my skin crawl. Is that way of thinking something they teach in law school? You go for what you can and place all moral responsibility on the judge? What if you suspect the court is comprised of Evil Republican-Appointed Judges who might actually believe your power-grabbing arguments? And suppose some President who wouldn't use this power for good (i.e. Not a Democrat) came into office and started using that power? I mean, we all know a Democrat would never ever misuse any sort of power, but hey, Democrats aren't always in office.

Apr 06, 2012, 20:40:38 libjpn wrote:

Donald, I actually think you are on to something here about the way lawyers are trained. This paper addresses that

and the first page of this article

Has this quote "The greatest thrill is to win when you are wrong!"

Apr 06, 2012, 21:08:28 sapient wrote:

Sorry about your skin, Donald. Even if we had perfect judges, the Constitution doesn't limit every bad thing that happens, and even if it did, bad leaders who don't support the integrity of the system would "grab" (in the true sense of that word) power that didn't legitimately belong to them under the Constitution. We had a leader like that recently, who did everything possible to hide his acts from the courts, and to bypass the judicial process.

We can show our superior morality by voting for the superior candidate under our two-party system, and by working hard to see that other people do. The more solidly the country votes for the candidates who represent (more than the alternative) fairness and justice, the more we head in the direction of fairness and justice.

What makes my skin crawl is that people whose ideas of fairness and justice correspond closely to mine have, through apathy and perfectionism, allowed the country to be taken over by people who promote opposite values, such as greed, oppression, and xenophobia.

You can bet, Donald,;' that as you head for your shower after thinking about sleazy lawyers, I am taking meds to calm myself down after thinking about people who allowed a President who would appoint people like (let's go back) Rehnquist (, Scalia, Thomas, Alito, and Roberts. The people who let that happen just don't seem to want to learn.

Apr 06, 2012, 21:24:21 sapient wrote:

libjpn, the article looks intriguing from my skimming. I did notice that, near the end, the author writes: "[a]lthough I am not happy with the structural, epistemological, remedial, and behavioral aspects of the adversarial system, I am skeptical that we can reform it by changing some ethical or procedural rules. A cultural change is required, and that is not easy to legislate."

And "we know that any system that we might substitute for [the adversarial system] would have other, perhaps worse, flaws for those who fear the power of state investigators, or the absence of clear standards or governing rules in private dispute resolution processes."

It doesn't sound as if the author (who calls herself "a reluctant adversarialist") is very sanguine about the real possibilities for a fair and just alternative to the adversarial system. (I agree with her, by the way, that other models are potentially better for certain types of cases.)

As to your "front pager," libjpn, I understand that casting aspersions on lawyers as lying opportunists is popular. And, obviously, with as many lawyers as there are in the country, there is a small percentage who fit that stereotype. It's not my experience that those people are typical, and they don't represent "the system."

Apr 06, 2012, 22:02:20 Ugh wrote:

The adversary system might work fine if both sides were possessed of infinite resources and equally proficient legal minds and none of the facts were in dispute and the judge was completely impartial, etc., but then the outcome would be determinable in advance and so why waste all that time and expense?

Instead, it too often devolves into tribalism "my side must win!" and a battle of resources, and judges relying on dumbass staffers, and other BS.

It's like politics that way.

Apr 07, 2012, 00:24:12 sapient wrote:

I agree with the criticism about resources, ugh. I think adjustments need to be made to the legal system (as elsewhere in society) to address income inequality and its unfair results.

Apr 07, 2012, 03:56:47 russell wrote:

"an executive branch usually doesn't take a position to make life more difficult for its employees."

I appreciate the general point, but here is the oath of office of the POTUS:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Note the part after the first comma.

Here is the 4th Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I would say that strip or body cavity searches qualify as a search of your person.

The POTUS' job is to faithfully carry out the law and uphold and defend the constitution. The convenience of the employees of the executive branch is a matter of somewhat lower priority.

"Taking a position that the searches are allowed doesn't mean that there isn't discretion to take a more humane approach."

Nor does it guarantee it.

On the contrary, in actual practice this will result in more people being subject to humiliating - and by 'humiliating' I mean intentionally humiliating, i.e. the humiliation is the point - searches of their person, when there is no good reason for it.

There are occasions where a strip or body cavity search is needed. It is, however, quite common for them to be used purely to demonstrate dominance and to bully or intimidate the person being stripped.

I think this was an utterly horseshit ruling. IANAL, of course, but if we've arrived at the point where rulings make complete sense to the legal community, but strike everyone else as utter and transparent crap, then the problem is actually much larger than just a bad ruling. At that point, the legitimacy of the law as an institution comes into question.

Apr 07, 2012, 05:59:27 sapient wrote:

Just a reminder: POTUS (in fact, the Executive Branch) was not a party to the case. The brief was an amicus brief, and was filed along with a lot of other briefs in favor of the respondent by states and municipalities (including the City of San Francisco) .

I don't agree with the court's decision, but I don't think that the amicus brief was a travesty in any way. Have you read it russell? And the other briefs? Because reading the language of the 4th Amendment leaves out a lot of decisional law that's pertinent to how the 4th Amendment has been interpreted in recent decades. Or are you an originalist all of a sudden?

I believe that what happened in the case is egregious, but not necessarily because of the strip search. Why was the guy incarcerated in the general prison population overnight for failure to appear in court on a traffic fine in the first place? If people were incarcerated only for serious crimes instead of for suspicion of failure to appear in court on a traffic fine, there might be more of a case for strip searches.

If you look at the list of amicus briefs, there are a lot of briefs by each side. An interesting brief for the respondent (the side that prevailed) is the brief by the DRI (a membership organization of civil litigation defense attorneys). These are people who advise governments on procedures for jail intake, including strip searches. They contend that a uniform intake process, including strip searches, is a procedure less subject to abuse than a procedure using the reasonable suspicion standard. There's a legitimate argument that, if strip searches are ever necessary to maintain jail security, they should be conducted uniformly since the "reasonable suspicion" standard leaves a lot of discretion in prison officials - which results in unfair singling out of certain groups, etc.

I can't imagine being a prison warden. But in order to consider the case fairly, I think it's important to try to figure out what such a job would be like. Of course, we the civil libertarians would never apply for such a job. But what if you were given it. How would you run a prison? You might read some of the briefs by people who do that in order to find out what kinds of difficulties they face.

We shouldn't be incarcerating nonviolent offenders in the general prison population, but it isn't the prison wardens that make that decision. They take in prisoners, and make sure that safety preserved. It's not something I would want to do.

Apr 07, 2012, 06:09:49 sapient wrote:

Oh, and sorry for my wordiness, but how does the President fail to defend the Constitution by going before the court, which is responsible for interpreting the Constitution, with an argument that is legitimate and based on precedent? Not everyone always agrees on what the word "unreasonable" means, which is why 4th Amendment case law is so extensive. I'm really sick of people questioning the good faith of the President and the good faith of the legal community just because they disagree with something.

Apr 07, 2012, 06:46:45 libjpn wrote:

well, sapient, my comment wasn't meant to be a 'first kill all the lawyers' kind of remark directed at you. I'm just saying that with an adversary system, you are going to select for features just as what you describe and those features are not necessarily the ones we want for a most civil society.

In Alex Kerr's Dogs and Demons, a great book about Japan and his experiences, iirc he talks about his employer/sponsor conducting a grueling negotiation with a Japanese counterpart to get the absolute maximum profit and after it was agreed to, his sponsor then said, ok, now, I want to return this amount to you to show you that I'm operating in good faith. I think that kind of option would be of great benefit in any kind of negotiation/discussion, including legal negotiation (which is what the legal system is all about, I think), but I have no idea how this could be introduced in a way that would not be an opportunity for abuse.

Apr 07, 2012, 07:33:55 russell wrote:

"Have you read it russell?"


I wasn't responding to the content of the amicus brief, I was responding to your argument that the executive branch weighing in in favor of broad permission for strip searches was reasonable on the grounds that they were trying to make their employees lives easier.

"But what if you were given it. How would you run a prison?"

I don't know. It would depend on what was, and was not, permissible.

Conceivably, I could run a prison by dropping problematic people down oubliettes. It's not like that hasn't been done before.

But that's not what we're talking about, is it? We're talking about whether it's constitutionally legitimate to subject people to strip searches *when there is no reasonable presumption that they're hiding anything up their butt*.

I suppose it's more fair, or easier to administer, if you just make everyone strip and spread'em. Then the subjective judgement of whoever decides to do the search is not part of the deal.

My druthers would be that you would have to demonstrate some reason to believe that the person is hiding something bad on their person.

You start there, and then you build the institutional machinery around that.

Not the other way around.

Apr 07, 2012, 08:06:29 sapient wrote:

Just to be clear, I agree with the dissent. I'm just saying that if I represented "116 federal prison facilities, which, along with privately managed and contract facilities, [which] house more than 216,000 pretrial detainees" as the federal government does, I might believe that a uniform way of dealing with prisoners would be preferable to allowing discretion (based on somebody's "reasonable suspicion") to people who might use it in a way that they could be arbitrary or discriminatory, etc., might be a better way to go.

I'd suggest reading some of the briefs. It's a whole different world out there.

Apr 07, 2012, 08:35:57 libjpn wrote:

"It's a whole different world out there."

That's the frightening thing. The Lithwick link in my first comment that has Scalia chortling about looking for advil in the girl's underpants suggests that never the twain shall meet.

Apr 07, 2012, 09:11:10 sapient wrote:

Scalia is a scourge. However, Lithwick was incorrect about her prediction: the Supreme Court did hold that the search of Redding's underwear was unconstitutional. Even Scalia joined the opinion. The opinion is here:

Apr 07, 2012, 22:44:25 russell wrote:

I'd like to return to this, from sapient, for just a minute:

"Why was the guy incarcerated in the general prison population overnight for failure to appear in court on a traffic fine in the first place?"

This is an excellent, and very relevant, question.

There are over 2M people in the correctional population in the US. That's people in prison, jail, or on probation. That is the highest rate of incarceration in the world, by far.

In many places, building and operating prisons has been outsourced to private businesses. Who spend a lot of money lobbying legislators, at both the state and federal levels, to enact laws and policies to continue jailing people.

One of the primary reasons that the jobs of wardens and guards is so hard is that there are *too many freaking people in prison*. And there are *too many kinds of people in prison*. For too many different kinds of reasons.

Having a pound of marijuana in your possession is not the same as killing somebody.

When people argue that strip searches are necessary because of the difficulty of managing the prison population, I would counter that they are addressing the wrong problem.

The wrong questions are being asked.

All of this is basically to agree with, not argue against, sapient's point upthread.

Apr 08, 2012, 16:07:25 libjpn wrote:

Just got back from the freshman camp and wanted to thank Salient for updating me on the Redding case. If you locate any analysis pieces about why the oral seemed so contrary to the final decision, I'd love to see them

Apr 08, 2012, 21:38:33 sapient wrote:

lipjpn, here's Lithwick on the result:

I'm not finished reading the rest of the series.

I love Dahlia Lithwick's reporting, by the way. The Redding case gives me hope for the decision on the ACA - that the justices will give us an opinion that doesn't match up with their questions in oral argument.

Apr 09, 2012, 01:40:51 sapient wrote:

russell, I do think that the case does, in a way, address the wrong problem. But the "American way" of incarcerating way too many people is a legislative issue, something that Constitutional law can't solve (at least my legal imagination can't think of a way, except for obvious prison overcrowding, a matter that was addressed by the Court last year - again, thanks to Democratically appointed justices plus Kennedy).

It's unfortunate that it is a "policy" matter, because politicians rarely champion the idea that people should stay out of jail. Since most voters don't anticipate going to jail, and since the prison population is largely disenfranchised, it seems unlikely that politicians will ever do the right thing absent a considerable "change of culture."

Time to change the culture, I think.

Apr 09, 2012, 05:45:15 libjpn wrote:

thanks for the link sapient.

Perhaps an Emperor for a day thought exercise about dealing with the questions of incarceration might be in order?

Apr 09, 2012, 05:54:48 DonaldJ wrote:

"What makes my skin crawl is that people whose ideas of fairness and justice correspond closely to mine have, through apathy and perfectionism, allowed the country to be taken over by people who promote opposite values, such as greed, oppression, and xenophobia. "

Dems are worth voting for as the lesser of two evils, but there's no reason to withhold criticism when they do the same sorts of things as the evil Republicans. I've never understood (aside from the old tribal impulse) what is so difficult to understand about this.

As for evil lawyers, I think some lawyers are great and some aren't. I was just wondering if the adversarial system can sometimes function as an excuse for moral buck-passing. I haven't read LJ's links yet, having been out of town for a couple days--they sound interesting.

Apr 09, 2012, 09:20:47 sapient wrote:

Well, Donald, it's not that I'm against criticizing. It's just that my priorities about who and what to criticize, and under what circumstances, seem to be different than yours. Anyway, it's not an argument I need to carry on further at the moment.

There's not that much I disagree with, of substance, with anybody here. The dispute is mostly about how we get to where we want to be. I would argue on my own behalf that it's less tribalism than pragmatism and a belief in discipline. My "tribe" seems to be all over the place on how to get the world we want.

Apr 09, 2012, 09:55:15 russell wrote:

"Time to change the culture, I think."

There is no statement with which I could be in stronger agreement.

Apr 09, 2012, 23:03:34 Ugh wrote:

sapient - I think I asked you this once before, but when, exactly, would it be permissible in your view to criticize Obama specifically and Democrats in general?

Apr 10, 2012, 05:19:45 sapient wrote:

Ugh, I think I have answered before but I'll be happy to do it again. People can say and do what they want, obviously. I happen to think that Obama is doing a great job, and I say so, and I say why. If you want to spend your political advocacy time criticizing Obama, go for it.

But what are you working towards? What changes as a result of what you say? Is what changes a better policy, or is what changes that people get even more frustrated and apathetic that "change we can believe in" just isn't good or fast enough to bother?

It's my opinion that the latter is what happened in 2010. And the results of that election put us several steps backwards.

So, sure, Obama's administration's amicus brief in the Florence case was in aid of the federal government's role as a prison administrator. What would you do as a prison administrator? Have you thought about it, or read all of the briefs or considered the problems involved in giving prison guards the discretion to strip search people based on their [subjective] reasonable suspicion? It's easy for you to say whatever you want, if you don't have to do that work. On the other hand, in Obama's role appointing members of the judiciary, he has the luxury of not being a prison administrator; he can do something far-reaching that guides the country in a direction which reflects his basic values. So what does he do when he has that luxury? He appoints judges that have ruled against his own justice department.

Who would the Republican have appointed? What person (who could have actually been elected president) would be making decisions that are more satisfying to you? Is that person standing up and complaining about Obama's amicus brief? Is anyone?

Why should I criticize Obama for decisions that I consider, at worst, reasonable, and, at best, intelligent and courageous? What I try to do when assessing Obama is to presume his good faith, and try to figure out why he made a particular decision. That's the same kind of analysis I'd make about actions of a friend of mine. I think he deserves that from his "supporters." If you don't think he deserves that, fine. Support the Republican. In our country, that's our choice.

Apr 10, 2012, 06:39:16 DonaldJ wrote:

"What I try to do when assessing Obama is to presume his good faith, and try to figure out why he made a particular decision. That's the same kind of analysis I'd make about actions of a friend of mine. I think he deserves that from his "supporters." If you don't think he deserves that, fine. Support the Republican. In our country, that's our choice."

Uh, no, it's not. Sticking to the two party choice and I agree that those are the practical options, you can assess politicians according to how they behave, support them when you think they are right, criticize them when they are wrong, and when it comes time to vote, pick the one which is better or at least less bad.

But your loyalty should be first to what you think is the truth. Politicians don't "deserve" the loyalty we give our friends, unless you have some pretty creepy friends. There's no reason to think of these people as your friends. They're politicians, for God's sake. They shaft their friends if that's what it takes to win elections.

I'll give an example of an issue that I follow to some degree--the Israeli-Palestinian conflict. Obama is a lot closer to my position than the Republican candidates, to put it mildly, but I also think he and Administration spokespeople (like Susan Rice) have said things on that subject which are despicable. I understand why. It's politics. An American politician who is running for President never morally equates Israeli atrocities with Palestinian atrocities--in fact, you deny that there are Israeli atrocities.

As for "discipline", I think the discipline you want comes across as political hackery. If you think Obama is wonderful and is a trusted friend than fine, you say so, but I've found it works better with my real life centrist friend if I tell him I'm not crazy about Obama, but the Republicans are insane, and if you like centrism, then Obama is your man.

Apr 10, 2012, 07:32:09 sapient wrote:

My loyalty is to the truth, Donald. And I have some of the same disagreements that you have with policy. But I'm willing to acknowledge, in my arguments that, no, Obama won't be reelected if he isn't perceived as "standing with Israel." So, obviously, he has to do that, or the Republicans win. Thus, I'm not going to call Obama a scumbag, hypocrite or whatever - how can I - he's doing something that we honestly agree that we can't change right now.

Also, I believe that some people are more knowledgeable than me in certain areas of foreign policy, etc. I'm a reasonably well-informed person, but I haven't spent the last ten years totally immersed in the study of the balance of power between Pakistan and India, how that relates to Afghanistan and Iran and Israel, etc. I don't speak any of those languages; I've never been in any of those countries, etc. I have a rudimentary knowledge. There are loads of people in government who have more of a clue than I do. What do I do about "the truth" then? I don't know the truth. It would be years and years of study before I knew the truth. Not only that, the truth is probably different in Pakistan than in India than in Afghanistan than in Iran. Sometimes, you just have to rely on your "tribe" to sort that out for you.

We (some time ago), on the mother ship, have made a valient attempt to be amateur truth-squaders. I'm totally in favor of doing that, and sometimes, when the administration is full of blatant liars, it works out pretty well. But, before criticizing the administration, we need to be playing with the same hand that they've been dealt. That's what I find lacking in most of the criticisms of Obama from the left that I read.

Apr 10, 2012, 09:58:30 russell wrote:

"But, before criticizing the administration, we need to be playing with the same hand that they've been dealt"

Walk a mile in my shoes, eh?

Here is the hand I have been dealt:

I have one crappy vote to spend on POTUS every four years, my two senators every six, my House rep every two, and my state rep and senator every now and then.

I can send emails and make phone calls. I will actually hear back, personally, from my state rep. I'll get a nice, on-topic form letter from my House rep. For the rest, my communications register, at best, as a statistic.

If I reach really deep, I can usually find about $1000 to spend in any given election cycle. Other than billionaires and C-level executives with corporate money to throw around, that puts me toward the top of the food chain, but I can assure you it doesn't get my phone calls returned.

The folks at ObWi let me rant online when I have the time to throw something together.

That's my hand. Those are the cards I hold.

So I'm not really that open to the idea that I need to bank my criticism of anybody, at all, including Obama and anyone in his administration, because I don't know what it's like to deal with the heavy pressures they have to live with.

Those guys have more freaking juice than anybody on the damned planet. And they're accountable, to you and to me, for what they do with it.

I am by god not obliged to hold criticism of, frex, Obama until I am 'playing with the same hand that they've been dealt', because I will never in 1,000 lifetimes be holding the cards he holds.

I'm not on Obama's side. I'm on my side. If he wants my support, I need to see that he's on my side, too.

Apr 10, 2012, 10:03:33 russell wrote:

Seriously, if you want to talk about 'changing the culture', you are not going to change the culture by stifling any criticism of any Democrat, anywhere, out of fear that some Republican will win the day.

The fucking Overton window needs to move back where it came from, and then move considerably more. Pardon my French.

Obama is not going to make that happen. That's fine with me, I don't expect him do move it. I think he is, in general, the best possible President we could have.

But if we settle for what Obama is bringing, the window will never, ever, ever, ever, ever, ever, ever move.

If you want to change the culture, you will need to push things far, far, far beyond what Obama is ever going to do.

Apr 10, 2012, 10:06:00 DonaldJ wrote:

"Thus, I'm not going to call Obama a scumbag, hypocrite or whatever - how can I - he's doing something that we honestly agree that we can't change right now."

That's beside the point. The point is that if he tells a lie people should say so. They can also speculate (as we both just did) on the reasons for the lying, but nothing is going to change on that issue or others if people simply accept the status quo. If Obama really is our secret pal who shares all our views he'll thank us for putting pressure on him and pointing out the reasons why he thinks he has to lie. (Not that I really think that--I tend to think that the process of becoming President or senator or reaching some high political office weeds out heretics. If you get to that level you probably more than half believe the BS you have to spout to get to that level.)

" But, before criticizing the administration, we need to be playing with the same hand that they've been dealt."

That I don't believe at all, except maybe in very rare cases--of course governments always claim to have really secret and crucial information Which They Can't Tell Us, that explains just why it is that we have to do exactly what they say we have to do, often something that involves blowing people up. Sure, once in a while it might actually be the case, but I don't know how anyone could think it is a safe bet, given the history of US foreign policy for the past several decades under both Democrats and Republicans. It's not that I'm an expert in foreign affairs or any other policy area, but I know there are people outside the government who are experts and one can read their opinions. These days one can even read some of the overseas opinions without having to go to a very good library. Your attitude here would be a really bad one for citizens to adopt--I really can't see how it is any different from the view that Bush defenders took. And yeah, it looks like plain old tribalism.

Apr 10, 2012, 10:30:40 libjpn wrote:

apologies for the meta on the meta on the meta, but a few thoughts. I'm probably more sympathetic to you than most of the other folks, sapient, but imvho, you tend to extend the argument a bit too far. This is because (again, imvho) one of the main purposes of blog comments is to give folks the opportunity to rant. I don't mean for this to be dismissive of russell or DJ (as in 'it's just a rant') but it often seems to me that you want to put a big lid on people's frustrations, and when that happens, eventually, the pressure builds up and things get heated. This is not to try and shut you down here, but inverting your points a bit (outlining why you agree with the dissent) followed by why you can see why the government would file an amicus might be a better way to approach this.

Apr 10, 2012, 10:30:54 russell wrote:

To put a point on this:

The issue on the table is that a guy was arrested and subjected to a strip search including inspection of his bodily cavities - in other words, they rummaged around up his freaking ass - for unpaid fines and tickets. Which, as it turns out, were paid.

That is utter unconscionable bullshit, period.

If the DOJ weighed in to explain that allowing this made their jobs just ever so much easier, than their jobs should not be easier. And, for that matter, screw them for advancing that argument. Because the plain facts on the table are utter unconscionable bullshit.

The idea that anybody should refrain from pointing out what is utterly god-damned obvious to a five year old in order to avoid embarrassing or otherwise inconveniencing the POTUS is insane.

If you don't like the decision, the proper response is to say you don't like the decision.

If you think the DOJ, or any other executive actor, is weighing in in a direction that you think is wrong, the proper response is to say that you think it's wrong.

You don't 'change the culture' by refraining from any criticism of it.

Apr 10, 2012, 10:35:38 russell wrote:

"one of the main purposes of blog comments is to give folks the opportunity to rant."

The tone of a post and the quality of its content are basically orthogonal.

Lots and lots of mental mush gets presented in the style of lovely moderate language.

And sometimes anger is part of the content. Sometimes it's inextricable from the message.

Apr 10, 2012, 10:51:35 DonaldJ wrote:

LJ--I think sapient takes the standard argument against lefties going third party to a self-refuting extreme. No one here is advocating going third party--Russell, ugh (I think) and I are just saying that we should voice our disagreement if the Obama Administration does something wrong. Sapient seems to think this is something we should only do if we want to support the Republicans. Now that's the sort of extreme position I would expect to find in a blog comment section--I've never heard anyone take it in real life.

Apr 10, 2012, 11:48:12 russell wrote:

Here's the thing.

Nobody here is calling Obama a scumbag.

Nobody here is "allow(ing) the country to be taken over by people who promote opposite values, such as greed, oppression, and xenophobia" through their "apathy and perfectionism".

These are a parade of straw men.

The points sapient is making about the mechanics of the legal process are extremely interesting. The idea that the POTUS and the executive generally are operating in a realpolitik environment, where the luxury of holding principled positions is not always available, also a good point, although frankly not one that anyone here is unaware of.

IMO Obama is a great President. And, there are a generous number of points on which I disagree with him.

There is *absolutely no value* to me in not stating that. If, as I both hope and expect, Obama is re-elected this fall, there will *no incentive at all* for him to advocate policies that are closer to my value, if I do make my preferences known.

And when I say "I" I am obviously referring both to myself and to people who hold similar points of view. I, personally, am not even a blip on anybody's radar.

I more than certainly want the culture to change. Because I think the country is on a self-destructive path, and when we catch a cold the world sneezes. There are very, very serious issues to sort out over the next generation, and Obama's centrist technocratic orientation *is not going to address them*.

And he is by no means unique in that regard. As far as I can tell, there is virtually nobody holding national elective office who has a damned clue about how to address the very critical issues that the country, and the world, is facing right now.

I am happy to support Obama as the best available athlete, and I also feel that it is my obligation, as a citizen of this country and as a human being, to speak for things that are important to me.

It freaking offends me to be lectured about "liberal perfectionism" any time I express a criticism of Obama or for that matter any (D), and it freaking offends me when any point of substance I wish to raise is countered with "well then perhaps you'd like a Republican".

I'm not a freaking liberal, I'm a lefty. I'm not a Democrat, I'm an independent. I'm not on Obama's side, I'm on my own side, and on the side of people places and things that are important to me. Obama will get my support to the exact degree that he seems likely to further objectives that I value more than any other available person, and not one iota more.

Because he *will not have earned an iota more*.

I have no interest in getting into who's done what when, but I'm happy to put my personal level of political and social engagement up against anybody's here. I don't need a lecture from sapient or anybody else about political realities.

I'm here to speak about what's important to me. That may or may not be of interest, but I am not going to refrain for the sake of Obama, or anyone else.

If they want my support, they can earn it. If they don't earn it, they won't get it.

Apr 10, 2012, 20:11:40 sapient wrote:

Just to be clear, I'm not giving a lecture. I'm also not suggesting that people never state their disagreement with Obama on his policies. I disagree with him on several matters: the "drug war," for example.

What I am suggesting is that the following kinds of criticisms (seen here and/or elsewhere) are misplaced, and do more harm than good:

1. Obama is "grabbing executive power" by filing an amicus brief in a case before the Supreme Court, supporting the concept that the Fourth Amendment doesn't prohibit routine strip searches [not body cavity searches, btw, russell-always a good idea to read the freaking brief] of prisoners upon intake.

2. Obama is a liar for supporting Israel.

3. Obama's "executive power grabbing" is worse than Bush's.

4. Obama is a corporate shill for supporting a health care system using private insurance corporations rather than a single payer system.

It's interesting to me that this discussion thread began with a criticism of the administration for filing an amicus brief in the Florence case. But despite the fact that people here are incredibly well informed and much less "hacks" than I am, they formed their conclusions about the brief without even reading it, without considering what the purpose of an amicus brief is, without considering some of the nuances of why a "reasonable suspicion" standard might be more "unjust" than a routine procedure.

That's what I'm talking about. I never said that it's impermissible to disagree with Obama. I would suggest that when you're criticizing him, you try to figure out what specifically he is doing, and what circumstances he's trying to address. If you don't want to go that extra mile of figuring out what the problem is, that's fine with me, but no matter how you describe yourself, as a "truth" seeker, or a "lefty," you're not seeking the truth and you're not changing the culture - you're enabling Republicans.

Apr 10, 2012, 21:30:50 russell wrote:

Also just to be clear, I'd like to point out that I personally was not making any of the four points sapient enumerates.

Nor do I object to the DOJ filing an amicus brief.

My issues are these:

The priority of the executive, from the POTUS down to the second under-assistant file clerk in charge of pencils, should be to faithfully execute the laws of the nation and uphold the Constitution.

That's their priority.

You can run a prison quite efficiently by simply chaining everybody to a wall and sedating them heavily.

Difficult inmates? Problem solved.

We don't do that. Why not? Because it would be a egregious violation of their human rights to do so.

The convenience of prison wardens has to take second place to the innate human rights of the inmates.

I certainly do recognize that there are a lot of bad actors in US prisons. Which gets, BTW, into issues far beyond the scope of this thread. But for this discussion suffice it to say that if you going about things in a way in which what makes the most sense is to do a strip and body cavity search on a guy who might have failed to pay a fine, YOU'RE DOING IT WRONG.

Profoundly wrong.

And if the question you're asking is "wait, why don't we just strip search everyone?", you're asking the wrong question. The right question is, how the hell did we get to the place where we are even considering something like this.

The largest issue I have with all of this is that, IMO, it undermines the authority and credibility of the law as an institution.

It is intuitively, and correctly, clear to any normal rational person that the treatment of Florence was egregiously wrong.

When the courts rule that what is, plainly and clearly, wrong is actually right, it harms the law. It undermines the law as an institution.

Especially when the highest justices in the country find themselves in the position of claiming that the law itself is what demands them to reach that conclusion. In other words, it's not just them saying it, and they might personally prefer not to come to those conclusions, but the law itself demands it.

To borrow a phrase from another context, man was not made for the law, but the law for man. When the law as an institution gets that backwards, it loses its moral authority.

And that is a very very bad thing indeed.

Apr 11, 2012, 01:57:23 DonaldJ wrote:

"Obama's "executive power grabbing" is worse than Bush's"

Sometimes it is. There's a guest blogger at Glenn (yes, that awful website) on that subject today.

"Obama is a liar for supporting Israel."

You're trivializing an important issue. Susan Rice is a liar for saying that there was no evidence of Israeli war crimes in the Gaza War. Sorry if saying that helps Republicans--I doubt it does, but I don't go around calculating what one should or shouldn't say on human rights issues based on a calculation of which political party you think it helps. There's a long bipartisan tradition in the US of lying about the human rights violations of our allies and ourselves. People should criticize this behavior and not turn it into a partisan issue, where you only ccomplain about such things when the Bad Party is in power.

Apr 11, 2012, 03:47:25 Ugh wrote:

sapient: 3. Obama's "executive power grabbing" is worse than Bush's.

I think I could probably come up with a persuasive case that it is, depending on how we define "executive power grabbing."

Apr 11, 2012, 04:15:37 sapient wrote:

"I think I could probably come up with a persuasive case that it is, depending on how we define 'executive power grabbing.'"

Perhaps you could come up with a persuasive case. And people of Glenn Greenwald's ilk spend quite a bit of time trying to do just that - persuading people who are willing to read his half-truths (although I admit that it's been awhile since I gave Greenwald or FDL a click). I would suggest, again, that it's extremely counterproductive, but obviously you disagree. Fine. I won't shut up either.

Donald, everyone knows what the deal is with Israel. The Obama administration is doing about as much as it can do unless it wants to anoint Mitt Romney as the next President. (He obviously dislikes Netanyahu intensely.) I agree that it's frustrating, and I'm not opposed to saying something about it. Saying something without acknowledging what the obstacle is would be irresponsible.

russell, as to faithfully executing the laws and upholding the Constitution, that's what the courts are for. That's how we determine what there is to execute and uphold. I realize that people here don't believe in the legal system; rather, they just hold every person to their own subjective standards of Constitutionality, morality, etc. Obviously, the drawback is that if Constitutionality were dependent on some single person's moral calculus, we'd have all kinds of crazy invasions of personal privacy (things that we seem headed towards, and are experiencing now in the area of women's health).

I just hope your "I'll hold my nose and vote for Obama" attitude is persuasive to the apathetic people out there who think it makes no difference and won't go to the polls.

Apr 11, 2012, 05:55:00 russell wrote:

"I realize that people here don't believe in the legal system"

This is nonsense.

I've raised two basic points:

1. Arguing that compromises in the area of civil rights are necessary because running prisons is hard puts the cart and the horse the wrong way around.

2. When the courts sanction behaviors and policies that are intuitively wrong, it undermines the rule of law.

You have addressed neither of those points, and have chosen to dismiss what I have to say with sniffy claims about people who aren't going to go vote for Obama because I've written a blog post.

Here on TiO, of all places, an inside-baseball outpost of ObWi.

Nobody anywhere is going to have their voting patterns affected by anything I say here.

Would that that were not so, but it is so.

Show of hands: anybody anywhere on the planet reading this who was considering voting for Obama, but is now reconsidering because of my comments here, please chime in.

The "it'll be your fault if we have a Republican President" thing is getting quite long in the tooth dude.

If you want to address what I have to say, please do. If not, fine. But kindly leave the "you are undermining Obama's electoral chances" stuff in the car, because nobody but us gives a crap what we say here.

Apr 11, 2012, 06:28:14 sapient wrote:

russell, somebody is misunderstanding someone else here. I agree with you about the court's decision. Didn't I say so? So I don't really need to "address" your #2. Since you said earlier that you weren't talking about the amicus brief (which serves a different purpose than a party's argument), I wasn't "addressing your point" about the amicus brief either (Or are you talking about the amicus brief? I'm confused.)

I've said multiple times throughout this thread that I agree with the dissent. I agree that strip searches of those suspected of petty violations are egregious. I think what happened to Florence was disgusting. His treatment certainly violates my personal understanding of the Fourth Amendment on a number of levels. But if I were arguing for the government I wouldn't be stating my personal view, and I'm sure the justice department lawyers don't feel compelled to do so either. That is where we differ. They're required to figure out a good faith argument, based on precedent or reasonable extension or reversal of precedent, in favor of their client (which, it appears in this case, they believed to have been prison administrators). I don't know exactly what you think about the adversarial system, but it seems to me that you disapprove of people arguing positions which you consider to be immoral. I don't. That's how the "truth" is found. Because it's not just my truth being aired; it's other people's idea of the truth.

By the way, it isn't all about you, russell. I was addressing three people, two of whom were invoking Glenn Greenwald. The Greenwald/FDL mafia gets under my skin in a huge way.

Apr 11, 2012, 07:05:06 DonaldJ wrote:

" The Greenwald/FDL mafia gets under my skin in a huge way."

Yeah, and while I can't say much about FDL, which I rarely read, your dislike of Glenn is of course what one would expect. I disliked Obama on human rights issues before he even became President, because after the Wright blowup I read his speeches to AIPAC on the Middle East in 2007 and 2008 and I also read some of the reporting by Human RIghts Watch on the Middle East and I trust them and not some damn American politician to be honest on that subject. It doesn't matter what his inner soul is like--when it comes to what he actually says and does Obama is a standard issue Democrat, often hypocritical on human rights issues in very predictable ways. Reading Glenn isn't required to reach that conclusion, though Glenn is tireless in pointing it out to people who don't want to hear it.
I doubt he's always right because nobody is always right, but his basic schtick seems almost self-evident --when it comes to human rights violations (either by us or by allies we support and lie for) there is and always has been a large degree of continuity between Democrats and Republicans.

As for helping Republicans, anyone who would vote for Romney because of anything I've said (including where I said that Obama is worse than Bush in some limited ways) is irrational and I'm not going to worry about how my comments effect irrational people,even if there really were a lot of people reading this blog. Personally I think wildly enthusiastic praise for Obama probably does him more harm than good. He's far superior to the Republicans on most issues--one needn't go further than that and it sounds silly if you do.

Apr 11, 2012, 07:20:12 russell wrote:

"it seems to me that you disapprove of people arguing positions which you consider to be immoral."

I think there is something to that, and IMO that's a perceptive comment.

What I would say is that it angers me for folks in my own government to be arguing positions which I consider to be immoral.

I do recognize that the adversarial system is how we collectively sort things out, and more than recognize it, I consider that to be a good thing.

But I think your quotes around "truth" are telling. IMO the adversarial approach *in this context* is less about discovering truth and more about negotiating competing interests.

Also valuable, but not quite the same thing as discovering truth.

Also, I recognize I'm not the only party to the discussion, and I don't mean to speak as if I am. Apologies if I've done otherwise.

Apr 11, 2012, 07:24:32 sapient wrote:

"He's far superior to the Republicans on most issues--one needn't go further than that and it sounds silly if you do."

Good. We'll leave it at that then as far as what I think of what you think. On my part, I'll enthuse as I deem appropriate, silly or not. He's a great President. (And, by the way, he did exactly what Human Rights Watch wanted him to do in Libya, and his support from Human Rights Watch adherents was, oops, where?) But, peace.

Apr 11, 2012, 07:32:31 sapient wrote:

"But I think your quotes around "truth" are telling. IMO the adversarial approach *in this context* is less about discovering truth and more about negotiating competing interests."

I think that sometimes when there are competing interests means that there are competing ideas as to the truth. I put truth in quotation marks because I don't personally believe I have a monopoly on it.

The government filed an amicus brief on behalf of prisons because the federal prison system had an interest in the outcome of the case. The federal prison system is created by Congress - under a law. The prisoners who land there land there because of laws. They are sentenced under laws. The prisons deal with the laws that they're given. They have to maintain security so that prisoners are kept safe (I know, sounds implausible, and we all know about prison guards and psychology, so whatever). But that's their job.

When the President faithfully executes the laws, part of his job is being a prison warden. It wasn't the Civil Rights Division that filed the amicus brief - it was the Solicitor General, speaking for the prisons. Their truth is that they get way too many people in their doors, many of whom pose a security risk to other prisoners. I don't think the prisons' interests should be paramount, but the lawyer for the prisons is the Justice Department. That's their job. It wasn't the Justice Department's job to represent Florence, at least not in this case.

By the way, I spend so much time here because I so much appreciate the thoughtful interaction. I use this medium to allow my thoughts to be known, frustrations and all. So, russell, I appreciate your apology, but it's only necessary because I respect you more for listening.

Apr 11, 2012, 10:33:48 sapient wrote:

I'm not always a Stanley Fish fan, but this article seems apropos to a discussion of "truth:"


Apr 11, 2012, 11:07:46 russell wrote:

"I think that sometimes when there are competing interests means that there are competing ideas as to the truth."

Yes, I think that is quite right.

"I put truth in quotation marks because I don't personally believe I have a monopoly on it."

Again, agreed.

Personally, I often think the truth is actually plural. Or, perhaps there is a truth that is not, but the best approximation we are going to make of it will inevitably be plural.

I also appreciate the difficulties that the criminal justice system faces in the US.

All of that said, IMVHO this decision is of a piece with a general cultural trend here in the US toward authoritarianism, brutality, and a lack of respect for the individual person.

I actually do think the country is at risk of going down the crapper, in a number of ways. I am more than happy that Obama is the POTUS, and I also don't expect him to be leading the charge to stem the tide on what I see to be really, really harmful directions that the country is taking. I don't think he has the temperament to do so, and I think the general trend of governance is not favorable toward doing so.

I basically see Obama as the adult in the room keeping the wheels from totally going over the edge of the cliff. And, I'm glad he's there to do it.

But the mainstream of political discourse in this country - the proverbial Overton Window - has been moving steadily to the right for the last 40 years. So much so that what would, even a generation ago, have been seen as paranoid fringe crack-smoking weirdness, has become the mainstream.

That window has to move back. Obama will not do that, and really it would be impossible for him to be remotely effective at his job if he took it on himself to do that. I get that.

But it has to move, so if it's going to move, the impetus has to come from people other than Obama. IMO as a practical matter it has to come from people who aren't even in government at all, certainly not at a federal level.

Because by far most of those folks have to operate in an environment where it's not really possible to stake out a contrarian position.

I will check out the Fish piece, thanks for sharing it.

Apr 11, 2012, 20:45:59 russell wrote:

that was a great piece sapient, thanks for the link.

Apr 11, 2012, 23:59:37 John Thullen wrote:

"I actually do think the country is at risk of going down the crapper, in a number of ways."

Thomas Crapper, the English plumber who actually didn't invent the flush toilet, is no longer around to advise on a device capacious and powerful enough to dispose of the amount of crap that requires flushing in the crapatorium now known as U.S. media and politics.

Looks like Zimmerman's decided to opt for the rogue grift, as I predicted over at OBWI.

Will Sean Hannity open his colon on the air on behalf of Zimmerman's new career as a sort of topping off of the Murdoch/FOX septic tank before it backs up into all of our basements?

Can Donald Trump, Gary Busey, Glenn Beck, The RNC, and the Kardashians be far behind, wheelbarrowing their steaming piles to the U.S. Grift Market?

Will Mitt Romney and Moe Lane take their delicate strategic dumps in solidarity with whatever new lows in waste management Zimmerman and company are going to beshat themselves.

I see a House race for Zimmerman on the Republican ticket.

I wish I'd followed my instincts and approached Zimmerman for a piece of this.

Zimmerman the guy might only be worth ten grand to all three of the New Black Panthers, who are pikers, but Zimmerman the Franchise ... this is going to be gold.

The "Stand Your Ground" swag alone should top ten figures for the job-creators.

Apr 12, 2012, 00:21:37 DonaldJ wrote:

"And, by the way, he did exactly what Human Rights Watch wanted him to do in Libya, and his support from Human Rights Watch adherents was, oops, where?) "

I was agnostic on the Libyan intervention and still am. Last I heard, human rights is still in a sorry state there. As for HRW, I trust their reporting, but reserve the right to express cynicism about US military interventions. I'm sure HRW also recommended that US war crimes be investigated but did Obama follow that advice? No. So I'm not real crazy about the way human rights groups are used by governments as a source of moral authority when they are convenient, and ignored otherwise.

Apr 12, 2012, 01:32:08 Ugh wrote:

It seems that everyone here agrees that SCOTUS got it wrong on this one. Starting from that premise, I fail to see how the Obama Administration should get any credit at all for filing an amicus brief in the case in that (i) filing such a brief was entirely within its discretion; (ii) the brief then argued for the incorrect outcome; (iii) depending on what one believes, that outcome is opposed by Obama; (iv) there were competing interests even within the federal gov't as to which side to take; (v) it's quite appalling that the interest of the "federal prison system" was the one that won out, and not, like, the interests of the average American subjected to the criminal justice system; and (vi) the argument that a completely unjust system is preferable to a partially unjust one is somehow acceptable.

Apr 12, 2012, 01:59:37 DonaldJ wrote:

"But, peace."

Forgot to reply to that. I'll go along with that--I think I'm starting to repeat myself. But you should grit your teeth and read some of GG again. This week he's got some good guest bloggers.

Apr 12, 2012, 02:09:17 sapient wrote:

Ugh, this is an interesting article on the role of the Solicitor General. Whether this particular brief was "invited" by the court, I don't know, and don't really have time to research at the moment, but not all amicus briefs by the SG are "entirely within its discretion." Maybe you have some information that this one was submitted as such?

And, it appears from the article (and perhaps the author is incorrect, but his career seems to have made a career of studying the solicitor general's role with regard to the Supreme Court) that the SG's amicus briefs don't always reflect the administration's policy goals or the president's beliefs.

So, again, try hard to blame Obama for being a horrible president because of this amicus brief. What's your goal, exactly?

Apr 12, 2012, 02:09:39 sapient wrote:

Oops, forgot the link:

Apr 12, 2012, 02:16:31 sapient wrote:

Okay, Donald, maybe I'll try Glenn Greenwald again, but I fear that I might lose my current state of calm. Perhaps when I have more of a break and a glass of something fermented.

Apr 12, 2012, 02:21:29 sapient wrote:

russell, I'm glad you enjoyed the article. The unsettling thing is to contemplate the different realities we each seem to live in.

Apr 12, 2012, 04:33:03 Ugh wrote:

sapient - thanks for the link to the interesting article. AFAICT SCOTUS did not CVSG here, which has been part of the premise of my argument all along.

The article certainly provides evidence that the position an SG ends up arguing in an amicus brief correlates with a President's policy positions (accepting the author's measure of such) only in certain areas.

It doesn't seem to say much, however, about the cases in which the SG decides not to file a brief at all, and the reasons therefore. Since my position has generally been that the administration should have just stayed out of the case altogether, I'm not sure that the article you linked shows much in this regard (as interesting as it was).

"So, again, try hard to blame Obama for being a horrible president because of this amicus brief. What's your goal, exactly?"

Simply: My country, right or wrong; if right, to be kept right; and if wrong, to be set right.

Apr 12, 2012, 08:15:12 sapient wrote:

"My country, right or wrong; if right, to be kept right; and if wrong, to be set right."

I'll toast to that, even if I sometimes disagree on the details.

Apr 13, 2012, 05:33:17 Ugh wrote:

sapient - hopefully we'll get there eventually, even if we disagree along the way.

This seems a rather good example of where Obama probably should be roundly criticized, as I can't imagine what he's thinking:

Quite frankly, I don't know how a WH press secretary can stomach the job. Should have been Obama out there defending this decision, ISTM. Jay Carney reading a script just isn't that convincing.

I do really think they're way too scared of Foxnews and the right wing blather machine. Would signing this EO really be an issue in November? I seriously doubt it.

And with that, this horse has been beaten into dust.

Apr 13, 2012, 09:05:06 sapient wrote:

What, Ugh? You want him to do another Executive power grab?

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