The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.Not sure I follow Kennedy's fear-mongering about 9/11 and what the point of that aside was. Is he suggesting that checking all anuses would have prevented 9/11?
According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.
A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.
Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.
Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.
For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.
As Bernard Harcourt explains, Kennedy's decision was a full-on embrace of what Harcourt calls “police-state” logic:
The Court embraced today a “police-state logic.” It is a logic that seeks to eliminate, to absolutely eradicate and purge any and all security risks, no matter how small they might be. It demands total suppression and erasure of risk. The police-state logic is about identifying, describing, cataloguing any and all possible security risks, no matter how trivial, and then effectively giving the state security apparatus free rein to adopt the most penetrating strategy to obliterate that risk.Speaking of disproportionate arrests, it should be noted that Albert Florence, who brought the case, was wrongfully arrested and detained twice for a fine that he had already paid. But no matter, when you're detained, apparently you have no rights anymore. As Aaron Bady explains:
The police-state logic ferrets out these potential risks and then turns over to the police state full power to radically eradicate the danger—no matter how small. It is a logic that is diametrically opposed to what has dominated constitutional analysis to date, namely a “political-state logic” that balances security risks against privacy interests, liberty, and other political values, in this case especially political anti-discrimination values. The disproportionate arrest of African-Americans in the United States is extremely alarming in light of today’s decision (as the very facts of this case demonstrate).
[T]he words “offenses,” “arrests,” and “charges” are all ways of demarcating the moment the state judges a person to be in custody without saying anything in particular about the reason why. The fact of being in custody becomes the only important fact, to which all others are subordinate. This is the logic of the decision, but its also the logic that the headlines obey, flattening all possible juridical categories into a single one: the condemned.Scott Horton points out that it's about prioritizing the interests of the prison-industrial complex and turning prisoners submissive:
After all, to be arrested or charged with an offense is not to be guilty of it, and there are also a broad range of ways to be taken into custody without having committed any kind of crime that would warrant a significant sacrifice of rights. You would think this would be important. In the case that the Supremes were actually deciding, for example, the arrested party had been wrongly arrested, and no one contested that; the police had screwed up their paperwork and mistakenly believed that he hadn’t paid a fine, when in fact he had. When he was repeatedly strip searched for this (non)offense, he protested the fact that, having done nothing to warrant it, he nevertheless was forced to endure an invasion of his bodily security. His rights were violated without due process.
[W]hen the court refuses to second guess or regulate the extent to which police can probe the bodies of citizens that the police have condemned — in Kennedy’s words “courts are in no position to second-guess the judgments of correctional officials” — what is happening, pretty explicitly, is the judgement that protecting liberty is too expensive. And this logic is what I think we should be truly concerned about, the ways that a right disappears not because of some crazy theory of “executive authority,” but simply because it is judged to be more economical to put a gloved hand in your anus than to build enough prisons to compartmentalize inmates by their appropriate juridical status. If your rights can become forfeit because of your behavior — if we accept the basic logic of criminology that certain actions cast you out of the normal bounds of rights-based citizenship — then the shifting line that distinguishes when and how and why your behavior causes that transformation is important to watch.
The decision reflects the elevation of the prison industry’s interest in maintaining order in its facilities above the interests of individuals. And it does so by systematically misunderstanding the reasons behind strip searches. Kennedy insists that they are all done for the aim of fostering order, and he backs up this position with exemplary bits of pretzel logic. For instance, he suggests that a person stopped for failing to yield at an intersection may well have heroin taped to his scrotum, and may attempt to bring it into the prison to which he is taken. In advancing such rationales, the Court ignores the darker truth about strip searches: they are employed for the conscious humiliation and psychological preparation of prisoners, as part of a practice designed to break them down and render them submissive.And yet, it seems that Clarence Thomas, he who never speaks — and apparently now never writes — wants to check all anuses all the time, no matter what the costs in terms of trammeling over civil liberties, but he won't tell you why:
Among this edgy majority, one voice was missing: that of Justice Clarence Thomas. “Justice Thomas joins all but Part IV of this opinion,” a footnote on the first page informs us. But Justice Thomas couldn’t be bothered to explain himself, at least not in public. Presumably he shared his thoughts at some point with his colleagues. We’re left to infer that what he wanted was a bright-line rule that would admit no exceptions, no circumstance under which a strip search might be so uncalled-for as to violate the Fourth Amendment’s prohibition of unreasonable searches.
Was this a position that Justice Thomas wanted to maintain without having to defend it in writing? Earlier in his tenure, he wasn’t shy about advocating extreme positions, such as his dissenting opinion in a 1992 case, Hudson v. McMillian, on whether inmates have a constitutional right not to be beaten by prison guards. The majority held that the Eighth Amendment’s prohibition on cruel and unusual punishment could apply regardless of the severity of any resulting injury. Justice Thomas said the Eighth Amendment protected inmates against only “serious injury” at the hands of their jailers, not against “a use of force that causes only insignificant harm.”
By refusing on Monday to sign Justice Kennedy’s part four, Justice Thomas deprived his colleague of a majority for the full range of his opinion, and without explanation. This was a wildly uncollegial act, violating the court’s norm that votes come with reasons.
Speaking of using fear as an excuse to violate civil liberties:
In 2004, the average extra waiting time due to TSA procedures was 19.5 minutes per person. That’s a total economic loss—in –America—of $10 billion per year, more than the TSA’s entire budget. The increased automobile deaths due to people deciding to drive instead of fly is 500 per year. Both of these numbers are for America only, and by themselves demonstrate that post-9/11 airport security has done more harm than good.
The current TSA measures create an even greater harm: loss of liberty. Airports are effectively rights-free zones. Security officers have enormous power over you as a passenger. You have limited rights to refuse a search. Your possessions can be confiscated. You cannot make jokes, or wear clothing, that airport security does not approve of. You cannot travel anonymously. (Remember when we would mock Soviet-style “show me your papers” societies? That we’ve become inured to the very practice is a harm.) And if you’re on a certain secret list, you cannot fly, and you enter a Kafkaesque world where you cannot face your accuser, protest your innocence, clear your name, or even get confirmation from the government that someone, somewhere, has judged you guilty. These police powers would be illegal anywhere but in an airport, and we are all harmed—individually and collectively—by their existence.
In his first statement, Mr Hawley related a quote predicting “blood running in the aisles” if small scissors and tools were allowed on planes. That was said by Corey Caldwell, an Association of Flight Attendants spokesman, in 2005. It was not the statement of someone who is thinking rationally about airport security; it was the voice of irrational fear.
Increased fear is the final harm, and its effects are both emotional and physical. By sowing mistrust, by stripping us of our privacy—and in many cases our dignity—by taking away our rights, by subjecting us to arbitrary and irrational rules, and by constantly reminding us that this is the only thing between us and death by the hands of terrorists, the TSA and its ilk are sowing fear. And by doing so, they are playing directly into the terrorists’ hands.
And now we've now confirmed that not everyone in the Bush administration was especially fond of shredding the Constitution and torturing detainees:
A memo released Tuesday on harsh interrogation techniques shows that a former State Department official strongly dissented from the George W. Bush administration’s secret legal view in 2005 that an international treaty against torture did not apply to CIA interrogations in foreign countries.Sadly, the Bushies had no time for debating such topics:
Until now, the February 2006 analysis by Philip Zelikow has been a high-level, classified, internal critique of the Bush administration’s controversial interrogation policies. At the time he wrote his criticism, Zelikow was Secretary of State Condoleezza Rice’s representative on terrorism issues to the National Security Council’s deputies committee.
“If the techniques, taken together, are intrinsically cruel, inhuman or degrading — i.e., if under American constitutional law they would be either considered cruel and unusual or shock the conscience, then they are prohibited.”
It “appears to us that several of these techniques, singly or in combination, should be considered ‘cruel, inhuman or degrading treatment or punishment,’” Zelikow stated.
“The techniques least likely to be sustained are the techniques described as ‘coercive,’ especially viewed cumulatively, such as the waterboard, walling, dousing, stress positions and cramped confinement,” Zelikow’s analysis concluded.
The importance of the memo lies in its revelation that there was real, serious debate inside the Bush administration about how to interrogate captured terrorist suspects. The members of the White House declined to enter that debate — indeed, they did their best to squash it. The destruction of Zelikow’s carefully reasoned memo suggests the White House did not want any record of alternative views even existing, lest they be considered reasonable or people get the idea that the torture policies were thought controversial even by members of the administration.
It's a generational war:
In 1984, American breadwinners who were sixty-five and over made ten times as much as those under thirty-five. The year Obama took office, older Americans made almost forty-seven times as much as the younger generation.
This bleeding up of the national wealth is no accounting glitch, no anomalous negative bounce from the recent unemployment and mortgage crises, but rather the predictable outcome of thirty years of economic and social policy that has been rigged to serve the comfort and largesse of the old at the expense of the young.
Arizona's politicians are insane. They want to criminalize offensive speech on the internet. And criminalize ethnic studies at the university level. And criminalize sustainability. And, of course, they've already criminalized Mexican-American studies in public schools:
Doctors make the call for evidence-based medicine and less over-treatment.
But as we've seen before, just because recommendations against over-treatment are out there doesn't mean they'll be followed.
HHS releases its final rules on student health care plans. No more lifetime caps, no more obscene profit-making while offering minimal coverage — and now featuring coverage for birth control. The Chronicle has more. Young Invincibles seems pleased. And I most certainly am, too.
With the Obama administration regulating new coal plants, how about regulating the old ones, too?
Our impending water crisis and urban growth.
Help review the Southwest Climate Assessment.
Conservatives interested in conservation read the writing on the wall and finally recognize that the Republican party long ago abandoned any interest in environmental protection.
Conservatives and science aren't getting along too well these days.
The NYT's Justin Gillis wishes more journalists paid attention to climate change. More pieces like this, for instance.
Catching forage fish to feed fish in fish farms is not sustainable.
Trayvon Martin is collateral damage in the NRA's war on decency and common sense.
“A separate justice system for Muslims.”
Why health care consumption is different.
Ronald Dworkin explains why the challenge to Obamacare is way off-base.
And Marty Lederman on how a supposed minimalist could uphold the ACA.
Empowering women requires more than just education.
Waste and corporate profits account for $500 million of food aid.
Police are using your cell phone to track you.
The social sciences' physics envy.
ASME's picks for last year's finest magazine journalism are out. Read on.
How the media uncritically swallowed the rhetoric of the education "reformers."
My friend Doug Mack's new book just came out and he's touring the country to promote it.
Understanding the tactics of Sheriff Joe: his grandstanding and attacking critics is how he defends himself.
Fraternities are terrifying and disgusting.
New Dirty Projectors! New Dirty Projectors! New Dirty Projectors!