The American Bear

Sunshine/Lollipops

New Research Supports the Notion That There Is No Such Thing As A Consensual Police Encounter

letterstomycountry:

In his 1999 book No Equal Justice, David Cole quoted Judge Marshall of the Northern District of Illinois:

Few of us, [confronted by] armed police officers…would feel free to tell the officers to mind their own business. ”… Implicit in the introduction of the [officer’s badge] … is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse an answer.

I’ve spent the last three years of my life studying police misconduct and criminal defense, and even I get nervous when a police officer approaches me or pulls me over. The knowledge that legally, he or she has the right to control my body or kill me is enormously unsettling. The knowledge that he or she can also make my life miserable if I question their legal authority also quiets my actions. For most people, it’s just simply not worth the effort to put up a fight, even if you think the officer is dead wrong.

When someone with a gun and a legal monopoly on the legitimate use of violence enters your personal space, the parameters of ordinary human conduct change. The Supreme Court’s hilarious legal fiction that people are free to walk away from police officers who simply approach them for questioning is absurd. For a sample, here’s Justice Alito, writing for the Court in Kentucky v. King, 131 S. Ct. 1849 (2011):

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do…the occupant has no obligation to open the door or to speak…and even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

To be frank, this is a big heaping pile of bullshit. Technically speaking, it is a correct statement of the law. Practically speaking, this is not how most interactions with police go: if you put up a fuss, or “assert your rights,” you’re liable to get treated more harshly. The officer might “notice” a few more violations on your vehicle. They can claim that you tried to assault them when you shut the door in their face. There are any number of ways they can make your life hell for not just going along to get along.

Everybody knows this to one degree or another. Which is why the average person gets scared when they see a police cruiser in their rear-view mirror, even if the cruiser’s lights aren’t flashing. It’s why even the most hardcore individuals often become submissive when a cop shows up at their door. When the other person has a gun and the force of law on their side, you’re bound to act differently than you otherwise would. It’s crazy that we need research to support this. But that’s what happens when you have a Supreme Court with literally zero former criminal defense attorneys on the bench.

Graham, McCain, Ayotte and King Statement On Enemy Combatant Status For Boston Suspect

Related, from the New York Times: G.O.P. Lawmakers Push to Have Boston Suspect Questioned as Enemy Combatant:

Senator Carl Levin, a Michigan Democrat who is the chairman of the Senate Armed Services Committee, said in a statement that the laws of war did not apply to Mr. Tsarnaev and that there was so far no evidence that he was “part of any organized group, let alone Al Qaeda, the Taliban or one of their affiliates — the only organizations whose members are subject” to detention as a part of war.

“In the absence of such evidence, I know of no legal basis for his detention as an enemy combatant,” Mr. Levin said. “To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes.”

[…]

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Mr. Graham said. [Good. We’re in agreement then] “But you have a right [no you don’t], with his radical Islamist ties [speculation] and the fact that Chechens are all over the world fighting with Al Qaeda [major speculation] — I think you have a reasonable belief to go down that road [nope, reason, conjecture, and paranoia are different things], and it would be a big mistake not to go down that road [no, that would be the law]. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable. [again, no, that would be the law].”

Recalling Justice O’Connor’s opinion in Hamdi v. Rumsfeld (Yaser Esam Hamdi was an American citizen who was captured carrying a weapon on the Afghanistan battlefield):

“there is no bar to this nation’s holding one of its own citizens as an enemy combatant.” But she also wrote the decision was limited to Mr. Hamdi’s “narrow circumstances.” She also said the purpose of wartime detention was to keep captured enemies from returning to fight, adding, “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.”

Glenn Greenwald noted on Saturday that the Obama administration has expanded, to its shame, the “public safety exception” to delay Mirandizing “terrorists” (opening up lawyer-free interrogation) caught on U.S. soil:

… the Obama administration has already rolled back Miranda rights for terrorism suspects captured on US soil. It did so two years ago with almost no controversy or even notice, including from many of those who so vocally condemned Graham’s Miranda tweets yesterday. In May, 2010, the New York Times’ Charlie Savage - under the headline “Holder Backs a Miranda Limit for Terror Suspects” - reported that “the Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.” Instead of going to Congress, the Obama DOJ, in March 2011, simply adopted their own rules that vested themselves with this power, as reported back then by Salon’s Justin Elliott (“Obama rolls back Miranda rights”), the Wall Street Journal (“Rights Are Curtailed for Terror Suspects”), the New York Times (“Delayed Miranda Warning Ordered for Terror Suspects”), and myself (“Miranda is Obama’s latest victim”).

But this isn’t good enough for Graham, et. al. No. They want the “enemy combatant” status. For what? Enhanced interrogation?

As Paul Pillar wrote, in his piece Spellbound by Terrorism:

Americans have inflicted on themselves, especially over the past eleven and a half years, costs from their responses to terrorism that go far beyond all that lost business in Boston. One of the biggest indirect costs came from Americans becoming so fearful and angry that they allowed themselves to be bamboozled into supporting a war against a country that had nothing to do with what had made them fearful and angry. There also have been severe, disgraceful departures from what otherwise would have been thought of as important legal and moral principles associated with the United States, involving especially the treatment and rights of detained persons.

It is as if once anyone utters the T-word, many American minds go haywire and suddenly forget legality, morality and [other purported] longstanding American values and jurisprudence. And so we have Senators John McCain, Lindsey Graham and Kelly Ayotte and Representative Peter King arguing that the suspect now recovering in a Massachusetts hospital should be handled as an “enemy combatant” rather than face justice in a criminal court. Why? Because of his Chechen ancestry? He is a U.S. citizen accused of committing a crime in the United States. Based on what we know at the moment, there is no more reason to treat the Boston Marathon bomber as an “enemy combatant” than to treat the Boston Strangler that way.

UPDATE: Boston Bombing Suspect Won’t Be Considered An Enemy Combatant via ThinkProgress. Positive - it will be interesting to see what kind of access the government permits his counsel.

Paine on Preserving Liberty • Harper's Magazine

jimicowan:

All these things have followed from the want of a constitution; for it is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, thus far shalt thou go and no further. But in the absence of a constitution, men look entirely to party; and instead of principle governing party, party governs principle. An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Relevant, I’d say. 

What rights should Dzhokhar Tsarnaev get and why does it matter? | Glenn Greenwald

"Leave aside the fact that Dzhokhar Tsarnaev has been convicted of nothing and is thus entitled to a presumption of innocence. The reason to care what happens to him is because how he is treated creates precedent for what the US government is empowered to do, including to US citizens on US soil. When you cheer for the erosion of his rights, you’re cheering for the erosion of your own."

Shortly before Dzhokhar Tsarnaev, an American citizen, was apprehended last night, GOP Sen. Lindsey Graham advocated on Twitter that the Boston Marathon bombing suspect be denied what most Americans think of as basic rights. “If captured,” Graham wrote, I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes.” Arguing that “if the Boston suspect has ties to overseas terror organizations he could be treasure trove of information”, Graham concluded: “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’”

Once Tsarnaev was arrested, President Obama strongly suggested that he would eventually be tried in court, which presumably means he will at some point have a lawyer (something that Graham, along with John McCain and Liz Cheney, last night opposed). But the Obama DOJ also announced that they intended to question him “extensively” - their word - before reading him his Miranda rights, as Graham advocated in the second and third tweets quoted above. And the DOJ said they intend to question him not just about matters relating to immediate threats to the public safety - are there other bombs set to go off? is there an accomplice on the loose preparing to kill? - but also, again in their words, “to gain critical intelligence”.

Graham’s tweets quickly created a firestorm of outrage among various Democrats, progressives, liberals and the like. They insisted that such actions would be radical and menacing, a serious threat to core Constitutional protections. I certainly shared those sentiments: the general concept that long-standing rights should be eroded in the name of Terrorism is indeed odious, and the specific attempt to abridge core constitutional liberties on US soil under that banner is self-evidently dangerous.

But while I shared the reaction of these Democrats to Graham’s decrees, it nonetheless really baffled me, as I quickly noted. This was true for several reasons.

First, the Obama administration has already rolled back Miranda rights for terrorism suspects captured on US soil. It did so two years ago with almost no controversy or even notice, including from many of those who so vocally condemned Graham’s Miranda tweets yesterday. In May, 2010, the New York Times’ Charlie Savage - under the headline “Holder Backs a Miranda Limit for Terror Suspects” - reported that “the Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.” Instead of going to Congress, the Obama DOJ, in March 2011, simply adopted their own rules that vested themselves with this power, as reported back then by Salon’s Justin Elliott (“Obama rolls back Miranda rights”),the Wall Street Journal (“Rights Are Curtailed for Terror Suspects”), the New York Times (“Delayed Miranda Warning Ordered for Terror Suspects”), and myself (“Miranda is Obama’s latest victim”).

essential read

The ACLU declares that ‘it is unconstitutional for the government to put people on secret lists and deny them the right to travel without even basic due process.’ It is also unconstitutional for them to put people on secret lists and deny them the right to life without even basic due process. The secret Kill lists and the No Fly lists compiled by unknown National Security State bureaucrats don’t just both undermine the Constitution. They make a mockery of our claim to live in a democracy in which the people have the ‘right to know’ what is being done in our name. What do Kill lists and No Fly lists have in common?

The late senator Daniel Patrick Moynihan once said that if he had to choose between a country with the right to vote but no habeas corpus, or a country that had habeas corpus but no right to vote, he’d choose the country with habeas corpus every time. His point was that if the government has the power to lock up its citizens without having to justify its actions to a court, as habeas corpus requires, all other rights are meaningless. If that’s true of detention without judicial review, it is even more true with respect to unacknowledged executive killing. We may think we are free to say what we want, exercise our religion and enjoy the protections of privacy, but none of those guarantees really exists if the president can order us killed in secret. David Cole

nickturse:

"Magna Carta is under… direct assault. Recall the Habeas Corpus Act of 1679, which barred ‘imprisonment beyond the seas,’ and certainly the far more vicious procedure of imprisonment abroad for the purpose of torture — what is now more politely called ‘rendition,’ as when Tony Blair rendered Libyan dissident Abdel Hakim Belhaj, now a leader of the rebellion, to the mercies of Qaddafi; or when U.S. authorities deported Canadian citizen Maher Arar to his native Syria, for imprisonment and torture, only later conceding that there was never any case against him. And many others, often through Shannon Airport, leading to courageous protests in Ireland.

"The concept of due process has been extended under the Obama administration’s international assassination campaign in a way that renders this core element of the Charter of Liberties (and the Constitution) null and void. The Justice Department explained that the constitutional guarantee of due process, tracing to Magna Carta, is now satisfied by internal deliberations in the executive branch alone. The constitutional lawyer in the White House agreed. King John might have nodded with satisfaction."

Noam Chomsky, The Great Charter, Its Fate, and Ours | TomDispatch

How the Left has Won (2) | Jacobin

Individualism isn’t the antithesis of community or socialism. To think so is to assume that attaining autonomy as an individual requires the denial of all tradition and solidarity, whether inherited or invented, or it is to assume that economic self-assertion through liberty of contract is the path to genuine selfhood. We know better – we know without consulting Aristotle that selfhood is a social construction – but we keep claiming that our interests as individuals are by definition in conflict with larger public goods like social mobility and equal access to justice and opportunity.

We keep urging our fellow Americans to “rise above” a selfish attachment to their own little fiefdoms, whether these appear as neighborhoods or jobs, and their cherished consumer goods. In doing so, we’re asking them to give up their local knowledge, livelihoods, and identities on behalf of an unknown future, a mere abstraction, a canvas stretched to accommodate only the beautiful souls among us: we’re asking them to get religion. Either that or we’ve acceded to the anti-American fallacy cooked up by the neoclassical economists who decided in the 1950s that liberty and equality, or individualism and solidarity – like capitalism and socialism – are the goals of a zero-sum game.

By now we know what the founders did: that equality is the enabling condition of liberty, and vice versa. There were two “cardinal objects of Government,” as James Madison put it to his friend and pupil Thomas Jefferson in 1787: “the rights of persons and the rights of property.” Each constitutional purpose permitted the other, not as an “allowance” but rather as a premise. One is not the price of the other, as in a cost imposed on and subtracted from the benefit of the other. Instead, liberty for all has been enhanced by our belated approach to equality, our better approximations of a more perfect union; for example, by the struggles and victories of the civil rights movement, the women’s movement, and the gay rights movement. [++]

jcstearns:

New Survey: Massive public support for all people’s right to record.
From the new State of the First Amendment report:
“Eighty-five percent, an overwhelming majority of Americans believe that people should be allowed to record or photograph the activities of the police in public as long as they do not interfere with what the police are doing.  Those that agree felt very strongly (66%) that people should have this right.”

jcstearns:

New Survey: Massive public support for all people’s right to record.

From the new State of the First Amendment report:

“Eighty-five percent, an overwhelming majority of Americans believe that people should be allowed to record or photograph the activities of the police in public as long as they do not interfere with what the police are doing.  Those that agree felt very strongly (66%) that people should have this right.”

Because we refuse to marginalise women in society in all roles that comply with sharia, we have decided, after deliberation with our senior ulama [clerics] and others … to involve women in the Shura council as members, starting from the next term…women will be able to run as candidates in the municipal election and will even have a right to vote Saudi Arabia’s King Abdullah has said women will have the right to stand and vote in future local elections and join the advisory Shura council as full members. The changes will come after elections on Thursday, in which women are barred from voting or standing for office. (source)

(via newsflick)

My idea is that healthcare should be at a certain level, like water and electricity. You can also say that you usually don’t choose your water supplier, no? OK, now we can play the Republican game and say, “What a horrible terror! They are depriving us of the fundamental choice to choose the water supply.” But we somehow accept that there are some things where it is much more practical that you are able to count on them. Sorry, but I gladly refuse the big freedom to choose my water supplier, the same as for electricity, although there things can get more tricky. Why not add to this series health? Europe demonstrates it can be done effectively, not to diminish our freedom, but to leave you much more space of much more greater actual freedom, and so on. Slavoj Zizek (via azspot)

(via azspot)