The U.S. Constitution offers protection to non-Americans

A post I wrote last week ("Guantanamo detainee dies in custody") has elicited a vigorous and heated interchange in the Comments section.  I normally leave comment debates alone as long as they don't deteriorate into interpersonal "ad hominem" attacks, but one comment that was made today warrants rebuttal:

"Constitutional right? He's a terrorist, NOT an American citizen, he has NO Constitutional right"

That's wrong.  Ethically wrong - AND Constitutionally wrong.  Here's a repost of an article I posted one year ago:

Selections from another interesting essay by Glenn Greenwald at Salon:

...one of the most pervasive myths in our political discourse: namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners...

First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush... although the decision was 5-4, none of the 9 Justices -- and, indeed, not even the Bush administration -- argued that the Constitution applies only to American citizens. What divided the Boumediene Court was the question of whether foreigners held by the U.S. military outside of the U.S. (as opposed to inside the U.S.) enjoy Constitutional protections...

Indeed, the whole reason why Guantanamo was created was that Bush officials wanted to claim that the Constitution is inapplicable to foreigners held outside the U.S. -- not even the Bush administration would claim that the Constitution is inapplicable to foreigners generally.

The principle that the Constitution applies not only to Americans, but also to foreigners, was hardly invented by the Court in 2008. To the contrary, the Supreme Court -- all the way back in 1886 -- explicitly held this to be the case... Over 100 years ago, the Supreme Court explicitly said that the rights of the Constitution extend to citizens and foreigners alike. The Court has repeatedly applied that principle over and over.

Do you read the fine print in your license agreements?

From the EULA for iTunes.  Found at Reddit.

An unexpected copyrighted book

The Telegraph has a New Year Literary Quiz.  I won't duplicate it here; those interested can take the quiz (and view the answers) at the link.  But I will blog this most curious item:

Question:   Which 1611 book is still not out of copyright in Britain — because the rights are held in perpetuity by the British Crown?

Answer:  The King James Bible (or Authorised Version)

?? !!!

You are being monitored

Here are some excerpts from a thought-provoking article at the Washington Post.  This one is part of a series called Top Secret America - "a project two years in the making that describes the huge security buildup in the United States after the Sept. 11, 2001, attacks. Today’s story is about those efforts at the local level, including law enforcement and homeland security agencies in every state and thousands of communities."

Nine years after the terrorist attacks of 2001, the United States is assembling a vast domestic intelligence apparatus to collect information about Americans, using the FBI, local police, state homeland security offices and military criminal investigators.

The system, by far the largest and most technologically sophisticated in the nation's history, collects, stores and analyzes information about thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.  The government's goal is to have every state and local law enforcement agency in the country feed information to Washington to buttress the work of the FBI, which is in charge of terrorism investigations in the United States.

Other democracies - Britain and Israel, to name two - are well acquainted with such domestic security measures. But for the United States, the sum of these new activities represents a new level of governmental scrutiny...

"The old view that 'if we fight the terrorists abroad, we won't have to fight them here' is just that - the old view," Homeland Security Secretary Janet Napolitano told police and firefighters recently...

The total cost of the localized system is also hard to gauge. The DHS has given $31 billion in grants since 2003 to state and local governments for homeland security and to improve their ability to find and protect against terrorists, including $3.8 billion in 2010. At least four other federal departments also contribute to local efforts. But the bulk of the spending every year comes from state and local budgets that are too disparately recorded to aggregate into an overall total...

Napolitano has taken her "See Something, Say Something" campaign far beyond the traffic signs that ask drivers coming into the nation's capital for "Terror Tips" and to "Report Suspicious Activity."  She recently enlisted the help of Wal-Mart, Amtrak, major sports leagues, hotel chains and metro riders. In her speeches, she compares the undertaking to the Cold War fight against communists...

Now, instead of having to decide which license plate numbers to type into a computer console in the patrol car, an officer can simply drive around, and the automatic license plate reader on his hood captures the numbers on every vehicle nearby. If the officer pulls over a driver, instead of having to wait 20 minutes for someone back at the office to manually check records, he can use a hand-held device to instantly call up a mug shot, a Social Security number, the status of the driver's license and any outstanding warrants...

At the same time that the FBI is expanding its West Virginia database, it is building a vast repository controlled by people who work in a top-secret vault on the fourth floor of the J. Edgar Hoover FBI Building in Washington. This one stores the profiles of tens of thousands of Americans and legal residents who are not accused of any crime. What they have done is appear to be acting suspiciously to a town sheriff, a traffic cop or even a neighbor...

As of December, there were 161,948 suspicious activity files in the classified Guardian database, mostly leads from FBI headquarters and state field offices. Two years ago, the bureau set up an unclassified section of the database so state and local agencies could send in suspicious incident reports and review those submitted by their counterparts in other states. Some 890 state and local agencies have sent in 7,197 reports so far...

And in Pennsylvania this year, a local contractor hired to write intelligence bulletins filled them with information about lawful meetings as varied as Pennsylvania Tea Party Patriots Coalition gatherings, antiwar protests and an event at which environmental activists dressed up as Santa Claus and handed out coal-filled stockings...

Since there hasn't been a solid terrorism case in Memphis yet, the equipment's greatest value has been to help drive down city crime. Where the mobile surveillance cameras are set up, criminals scatter, said Lt. Mark Rewalt, who, on a recent Saturday night, scanned the city from an altitude of 1,000 feet.

Flying in a police helicopter, Rewalt pointed out some of the cameras the DHS has funded. They are all over the city, in mall parking lots, in housing projects, at popular street hang-outs. "Cameras are what's happening now," he marveled...

There are eight pages of text at the WaPo link, and from there you can access previous stories in the series.

Offered without comment

Found at Criggo.

Sudanese woman publicly flogged

Some version of the disturbing clip, which seems to have been filmed with the knowledge of the officers, were reportedly removed from YouTube, but dozens of copies remain on the video-sharing site. One copy, which has been viewed nearly half a million times, was edited to add English subtitles, and some music. (Warning: the images in the video are graphic and may upset many viewers.)

As the [Reuters] explained, “Floggings carried out under Islamic law are almost a daily punishment in Sudan for crimes ranging from drinking alcohol to adultery. But vague laws on women’s dress and behavior are implemented inconsistently.”

Via The Lede at the NYT.

Congressman Ron Paul addresses the Wikileaks affair

His address to the House floor yesterday takes five minutes.  TL:DR(L) = he notes that Assange is not the "leaker," but more a publicist of information leaked by U.S. government employees.  He asks why more of the outrage is not directed at the leaker rather than at Assange, and asks if Assange is to be prosecuted for publicizing the material, will the same charges be leveled at the NYTimes, WaPo, The Guardian, etc.

Governor Schwarzenegger decriminalizes marijuana possession

California Gov. Arnold Schwarzenegger (R) Thursday [9/30] signed into law a bill that decriminalizes the possession of up to one ounce of marijuana. The bill reduces simple possession from a misdemeanor to an infraction.

Currently, small-time pot possession is "semi-decriminalized" in California. There is no possible jail sentence and a maximum $100 fine. But because possession is a misdemeanor, people caught with pot are "arrested," even if that means only they are served a notice to appear, and they must appear before a court.

That has happened to more than a half million Californians in the last decade, and more than 60,000 last year alone. Every one of them required a court appearance, complete with judge and prosecutor. That costs the cash-strapped state money it desperately needs.

Under the bill signed today... pot possession will be treated like a traffic ticket. The fine will remain at $100, and there will be no arrest record.

In a signing statement, Schwarzenegger said he opposed decriminalization for personal use—and threw in a gratuitous jab at Proposition 19, the tax and regulate marijuana legalization initiative—but that the state couldn't afford the status quo...

The law goes into effect January 1.

Addedum: His signing statement.

Afghan "kites for kids" stolen by Afghan police

Anyone who has read The Kite Runner knows the importance of kites in the lives of Afghan children. This week, the U.S. Agency for International Development arranged an event to give away kites to children.

For starters, Afghan policemen hijacked the event, stealing dozens of kites for themselves and beating children with sticks when they crowded too close to the kite distribution tent. To be fair, the children were a little unruly, but they were also small.

Sometimes the officers just threatened them with sticks, and other times slapped them in the face or whacked them with water bottles. "I told them to stop the policemen from taking the kites," said Shakila Faqeeri, a communications adviser for the contractor, DPK Consulting.

But the policemen appeared to ignore her. Asked why one of his officers was loading his truck with kites, Maj. Farouk Wardak, head of the criminal investigation division of the 16th Police District, said, "It's OK. He's not just a policeman, he's my bodyguard."

The district police chief, Col. Haji Ahmad Fazli, insisted on taking over from the American contractors the job of passing out the kites. He denied that his men were kite thieves.

"We are not taking them," he said. "We are flying them ourselves."

The rest of the story is at the Star Tribune link.  Ironically, the kite festival was being conducted "to promote the use of Afghanistan's justice system and increase public legal knowledge." What a totally f***ed-up country.

(Not a) drug checkpoint

"Freeway signs warning of upcoming drug checkpoints are actually a ruse: the local sheriff sets up a checkpoint at the next offramp and searches panicky motorists who pull off to ditch their stashes. An accompanying map on the original post gives the locations of similar checkpoints all over the USA, and warns, "if you see one of these signs, don't fucking exit.""

Found at 420 Tribune, which discusses the ethics and legality of such ruses and searches.   Via Boing Boing.

Roof goats

The sight is familiar to anyone from Wisconsin.  Al Johnson's restaurant in Sister Bay, Door County (the "thumb" sticking into Lake Michigan is a classic vacation destination) has goats on the roof.  I've eaten there several times and enjoyed the outstanding Scandinavian cuisine.

But I was disappointed to read this week that the restaurant sued another restaurant last year after discovering that the other one had also been using goats on their roof to attract customers. 

Another restaurant in Sister Bay?  No.   Was it in Door County?  No.  In Wisconsin??  No.  The other establishment (a market, not a restaurant) was 750 miles away - in Georgia forcryingoutloud.

Last year, he discovered that Tiger Mountain Market in Rabun County, Ga., had been grazing goats on its grass roof since 2007. Putting goats on the roof wasn't illegal. The violation, Al Johnson's alleged in a lawsuit in the U.S. District Court for the Northern District of Georgia, was that Tiger Mountain used the animals to woo business.

The suit declared: "Notwithstanding Al Johnson's Restaurant's prior, continuous and extensive use of the Goats on the Roof Trade Dress"—a type of trademark—"defendant Tiger Mountain Market opened a grocery store and gift shop in buildings with grass on the roofs and allows goats to climb on the roofs of its buildings."

Al Johnson's "demanded that Defendant cease and desist such conduct, but Defendant has willfully continued to offer food services from buildings with goats on the roof," the suit continued.  Danny Benson, the offending market's owner, says that "legally we could fight it, because it is ridiculous...

The rest of the story is at The Wall Street Journal.  I fully understand the importance of copyright and trademark rights, but this case appears to me to be particularly small-minded.  Our family will be vacationing in Door County again, but my dining plans will be to explore some other restaurants. 

Photo credit monkey.biz.

"You have a right to remain silent..."

In the recent case of Berghuis v. Thompkins [560 U.S.____(2010) (docket 08-1470)] the U.S. Supreme Court ruled five to four that persons being interviewed by the police are required to articulate their answers to the Miranda warning that they have the right to remain silent. The case originated when Van Chester Thompkins was being questioned about a shooting in which one person was killed. Instead of invoking his Miranda right to remain silent, Thompkins simply remained silent, which is what the warning seemed to be allowing him to do. In fact, he remained silent through two hours and forty-five minutes of questioning, at which point the detective asked him if he believed in God and prayed, to which Thompkins spoke for the first time, saying "yes." The detective then asked him, "Do you pray to God to forgive you for shooting the boy down?" Thompkins again answered "yes," but refused to produce a written statement...

In short, by being silent during the interrogation Thompkins did not invoke his right to remain silent, but he waived his right when he said "yes" to the detective's questions about religion. Kennedy added that the accused are required to talk in order to indicate their unwillingness to talk...

More at Language Log.

"Extreme Honesty" minimizes malpractice litigation

An article at the New York Times several weeks ago referenced some pioneering medical malpractice interventions established at the Lexington (Ky.) Veterans Administration Medical Center two decades ago.

The idea was the brainchild of Chief of Staff Dr. Steve Kraman and Ginny Hamm, legal counsel for that V.A., and is detailed in their report in the Annals of Internal Medicine (Ann Intern Med. 1999; 131: 963-967.)  They noted that medical malpractice claims were much like divorce proceedings, in that the plaintiffs were often angered at what they perceived as a betrayal of trust, and that families of patients often sought financial revenge for what they viewed as cover-ups of inadequate care.

Dr. Kraman and Ms. Hamm therefore set a new proactive policy for the Lexington VAMC.  They asked medical and nursing staff to report to a committee all incidents which might reasonably be considered negligent practice.  Importantly, "when investigation identified an incident of negligence of which the patient or next of kin was apparently unaware," the VA then proceeded to "notify the patient of the committee’s findings."

That proactive component of going up to the patient and his family and saying "we screwed up and we're sorry and we'd like to make it up to you" had apparently never been done before.  They found that even though their policy seemed on the surface to "be designed to maximize malpractice claims," that patients and families expressed much less anger and desire for revenge:

In our experience, plaintiffs’ attorneys, after first confirming the accuracy of the clinical information volunteered by the facility, are willing to negotiate a settlement on the basis of calculable monetary losses rather than on the potential for large judgments that contain a punitive element.

In effect, by avoiding courtroom disputes, they were able to pay out more money to the patients and families, and less to prosecuting and defense attorneys.

Those interested in this subject matter should read the Kraman and Hamm article (pdf).  The broader implications are discussed in the NYT article.

California's Proposition 19

The Regulate, Control and Tax Cannabis Act of 2010 includes the following provisions:

• Persons over the age of 21 may possess up to one ounce of marijuana for personal consumption.
• May use marijuana in a non-public place such as a residence or a public establishment licensed for on site marijuana consumption.
• May grow marijuana at a private residence in a space of up to 25 square feet for personal use.
• Local government may authorize the retail sale of up to 1 ounce of marijuana per transaction, and regulate the hours and location of the business.
• Local government may authorize larger amounts of marijuana for personal possession and cultivation, or for commercial cultivation, transportation, and sale.
• Allows for the transportation of marijuana from a licensed premises in one city or county to a licensed premises in another city or county, without regard to local laws of intermediate localities to the contrary.
• Maintains existing laws against selling drugs to a minor and driving under the influence.
• Maintains an employers right to address on-the-job consumption of marijuana that affects an employee's job performance.
• Maintain existing laws against interstate or international transportation of marijuana.

More details at Wikipedia, along with an outline of the fiscal impact: "The California legislature has estimated that taxing the previously untaxed domestically grown $14 billion marijuana market would produce $1.4 billion a year."

Image:  1972 poster.

Librarian vs. Texas Ranger. Librarian wins.

But not without a struggle.  This is a remarkable story of how a librarian in El Paso defended the privacy of ordinary citizens against a Texas Ranger and a city mayor.

Shortly after the September 11 attacks in 2001, two men came into the El Paso (Tex.) Public Library where Brey-Casiano was (and still is) director. One man, wearing a white cowboy hat and a huge belt buckle, identified himself as a Texas Ranger. He told her a threat had been sent recently from one of the library computers and demanded to see the sign-up sheets. Brey-Casiano replied that she could not release patron records without a court order and that, in any case, the sign-up sheets were shredded every night. The ranger’s sidekick began citing the USA Patriot Act as authority, but she reminded him that it was a federal law, which cannot be invoked by a state law enforcement official.

The two men left, but the next morning a court order arrived asking for specific sign-up sheets—ones that could not be handed over because they had already been shredded. The following Monday, Brey-Casiano got a call from the mayor of El Paso, who accused her of withholding information (a felony in Texas) and told her he was putting her on administrative leave. Knowing her rights, she insisted she had done nothing wrong and followed proper legal procedures. The mayor admitted it was out of his hands, since the Texas Ranger had filed the complaint. He agreed to let her stay on the job as long as she told no one about the situation—effectively a gag order—during the course of an official investigation of her actions...

“The investigation was more far-reaching than I could ever have imagined,” Brey-Casiano told the audience. “Police interrogated all 140+ of my staff members, asking about my character but without saying why they wanted to know. Some of them came to me in tears, and others refused to answer any questions at all.”

Finally, after months of this intimidation the El Paso police chief (whom she considered a friend) gave her some reassuring signals, and Paco called to say that the District Attorney had decided not to prosecute her for withholding information. She found out later the decision was due largely to the response of her staff, all of whom had said, “Carol would not do that.”

The full story is at American Libraries magazine.  Via Reddit, where there is a discussion thread, including "Upvoting because there's something about a librarian protecting your interests better than Texas Rangers that is very telling of the sad state of this country."

In defense of a sexual offender

This letter was posted at the Psychology Today blog:

My husband is on the sex offender registry in Illinois, for 15 years for having a consensual relationship with me, his wife, when I was 16. He is lumped in with pedophiles, rapists and the worst kind of perverts. We have three children and my husband cant keep a job (he has a P.H.D), he cant pick up our kids from school, we've been thrown out of our home twice because we live by a school and police monitor our home. Why in Gods name isn't any common sense prevailing around this issue and when do we start letting people off the registry who are not a public threat? This is destroying our family, our children's well-being and my father in law (a decorated war veteran) has depleted his pension supporting us. We have testified before Illinois congress, had several favorable articles on us from the Chicago Tribune, yet they wont let my husband - Mark - off the registry. He only has a misdemeanor for being with me, his devoted wife of 5 years now. We were married by the same judge,(Thomas E. Nowinski,) who gave Mark the misdemeanor. Please, please someone help us. Neighbors stare at our home; people think a rapist lives in the home. Mark's oldest son (from a previous marriage) was assaulted in Hyde Park, defending Mark from fellow classmates calling Mark a rapist!! This is ruining my children's welfare and I, the "victim" am begging some one to take his name off the sex offender registry!!. To verify what I've said, look Mark Perk up on Google...we live in Crestwood IL, zip code 60445. Please, someone help my family from this horror. We have been pulled over by police and Mark detained (while our children scream in the car) so many times I can't count. This is profoundly unfair. We need your help immediately, please help us!!!!! This law (Megan's laws) was designed to protect children, not ransack and destroy families and put a Scarlet Letter around someone's neck who does not deserve to be labeled as a sex offender. Someone please, please help us. The ACLU completely ignores cases like this. You are our last hope!!!!

There is a response and a thread of 73 comments at the link.

Russia has truly adopted American-style "democracy"

The release of this video shocked many people...

The footage, shot last week in Russia's Duma, the 450-member lower house of parliament, showed three MPs frantically running from empty seat to seat in order to vote for fellow deputies who were playing truant after lunch...

"Usually, voting in parliament takes place at the end of a session when the cameras have left and the journalists are not in the chamber." This time was different though and a cameraman from Russian TV channel Ren TV caught the farce on camera in a video which went viral on the internet.

One unidentified MP was caught voting nine times. Critics said the abysmal turnout technically made the vote illegal since the rules of parliament itself stipulated that a majority of MPs needed to be present for its activities to be legitimate.

I wasn't surprised, because I remembered a similar video I posted last April...

That's the Texas legislature doing the same thing.

False memories and "recovered" memories

It was a vivid story, told with sincerity and emotion. But the events Chris described had never happened. Chris's elder brother, Jim, had made it up as an assignment for Loftus' cognitive psychology class. Jim, pretending the story was real, had fed Chris the basics—the name of the mall, the old man, the flannel shirt, the crying—and Chris, believing his brother's fabrication, had filled in the rest. He had proved what Loftus suspected: If you were carefully coached to remember something, and if you tried hard enough, you could do it.

And this was just the beginning. In the years to come, Loftus and her colleagues would plant false memories of all kinds—chokings, near-drownings, animal attacks, demonic possessions—in thousands of people...

Loftus set out to prove that such memories could have been planted. To do so, she had to replicate the process. She had to make people remember, as sincerely and convincingly as any sworn witness, things that had never happened. And she succeeded. Her experiments shattered the legal system's credulity. Thanks to her ingenuity and persistence, the witch hunts of the recovered-memory era subsided.

The full story is at Slate.

Demographics of the U.S. Supreme Court

As noted by a BBC columnist:

The nomination of Elena Kagan to replace the retiring John Paul Stevens on the US Supreme Court means, if she is confirmed, all of the justices will have been at either Harvard or Yale law schools...

If Ms Kagan is confirmed as a Supreme Court justice, there will be five from Harvard law school, three from Yale law school and one from Columbia law school. But Ruth Bader Ginsburg started out at Harvard law school before transferring to Columbia.,,

For much of its history, a geographical spread of justices was the top priority, notes Peter Hoffer, distinguished research professor at the University of Georgia, and co-author of The Supreme Court: An Essential History.

"Theoretically, the court is supposed to be divided among different parts of the country. Now we have gone past that - we are one nation, connected by the web and the media - that kind of geographical distinction is not so important any more."

After the need for geographical diversity of the court ebbed, other priorities emerged.

"As late as the 1960s you had a Catholic seat and a Jewish seat to ensure some kind of representation. It's rather ironic that now you have six Catholics and three Jews," says Prof Joel B Grossman, co-editor of The Oxford Companion to the Supreme Court of the United States.

Of course, with a small group of people, it's hard not to have some imbalances.  "There is only a limited number of ways you can divide up nine," says Prof Grossman.

Talking Points Memo emphasizes the New-York-City-centeredness of some of Obama's appointments:

Barack Obama's vision of American justice seems a bit parochial, with Attorney General Eric Holder hailing from the New York City borough of Queens; Supreme Court Justice Ruth Bader Ginsberg coming from a once-proud, upwardly mobile Jewish section of Brooklyn that contains her alma mater Abraham Lincoln High School and is near Coney Island; Justice Sonya Sotomayor coming from a public housing project in the Castle Hill neighborhood of the South Bronx; and, now Supreme Court nominee Elena Kagan coming from a part of Manhattan's Upper West Side....

Various comments on Elena Kagan

Common Dreams opines that a Kagan appointment would push the Court to the right:

But she has been a loyal foot soldier in Obama's fight against terrorism and there is little reason to believe that she will not continue to do so. During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield.

The WSJ notes some prior ties to Goldman Sachs, which reportedly are insignificant:

From 2005 to 2008, Ms. Kagan was a paid member of the Research Advisory Council of Goldman Sachs Global Markets Institute, according to financial-disclosure reports she filed after being appointed to her current job. The form shows she was paid $10,000 in 2008, when she was dean of Harvard Law School.

Glenn Greenwald offers some trenchant observations in his Salon column:

The White House Monday said that the Supreme Court nominee won't follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

Kagan wrote in 1995 that the confirmation process had become a "charade" because nominees were not answering direct questions, and said they should have to do so.

But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion. . . .

It would be one thing if Kagan had been formulated this view when she were a college sophomore and then re-considered it as her career progressed. But that's not the case. In 1995, Kagan was a tenured faculty member of the University of Chicago Law School... Does anyone, anywhere, believe that her "reversal" is motivated by anything other than a desire to avoid adhering to the standards she tried to impose on others?

...In one interesting exchange, Kagan not only states that she believes we are "at war" but agrees that we should have considered ourselves at war since the 1990s . . . . Kagan’s writings (as little as there is) is highly problematic for liberals. . . . For liberals, the problem is her "pragmatic" approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

And Matthew Yglesias raises the question about the necessity for lifetime appointments of Supreme Court justices:

Concerns you might have about justices being unduly influenced by political or financial considerations could be easily met by giving justices a single, non-renewable term of 9 or 10 or 12 years plus a decent pension.

I think this would have two advantages over the present system. One is that the current rule puts undue weight on throwing up young appointees...

What’s more, we might plausibly see in the near future the situation in which an elderly justice begins to suffer from very serious medical problems but refuses to step down because he or she finds the incumbent president ideologically uncongenial.