SCOTUS Watch: Got Some Opinions

Abortion (Procedural): The case that should have dropped first on Thursday was a 8-1 opinion that Justice Breyer clearly dropped a spoiler about in a recent argument though the result was only anyway surprising (maybe) as to the votes.

This was the Kentucky abortion case where changing political control led to changing positions regarding defending an abortion regulation. It also turned on what state law allowed regarding who can defend a law and the specifics of this particular ligation.  Kagan/Breyer concurred separately to say the lower court was wrong to not allow the suit, but would have avoided the constitutional implications of the main opinion. 

The situation here opened up a chance to limit abortion rights, but the overall principle in some other case could have a liberal result.  A person supporting abortion rights might be suspicious, but this sort of thing suggests the wider nature of the litigation.  Sotomayor dissented, concerned about opening up a can of worms, including given the specifics the case that seemed to her to be abusing the process.  

I was wary about this case, thinking the conservatives on the Supreme Court was reaching out to help anti-abortion challenges. It is not like procedural rules have been consistently followed over the years.  But, reading a summary, I'm somewhat reassured.  Again, this sort of thing is not necessarily ideological in application.

[Bit of a glitch on the release of this opinion of Thursday.  This came out since with Twitter, reporters could announce things in live time.  A typo was also eventually corrected. 

Breyer's opinion was released first though release usually goes by reverse seniority.  The press also had access to Alito's opinion as well before it was posted on the website.  The website  followed the ten minute rule that was applied when there were live opinion announcements.]

States Secrets:  The abortion procedural case was written by Alito.  Alito also wrote the second (unanimous) state secrets opinion.  This was released on Friday.  The Supreme Court (without separate opinion) held that the lower court was wrong to think a specific provision of the FISA law (allowing courts to examine secret materials) overrode the state secrets privilege.  This was in relation to a lawsuit against the FBI.  

This is troubling, since the state secrets privilege has been abused, and FISA would seem to be a way to balance secrecy and justice.  But, we are talking about the reach of a statute here, so good policy is not the only issue at hand.  I would myself think the interests of justice warrant interpreting the law here to -- if possible -- provide the exception. I also would support change of the law to so provide.  

Abu Zubaydah isn’t asking for much. Although the U.S. government has never charged him with a crime, it has detained him for two decades on the belief that he is a terrorist. Before transferring Zubaydah to Guantanamo in 2006, the government tortured him at two different “black sites” in Thailand and Poland. Today, Polish prosecutors are investigating whether to bring charges against the perpetrators of these abuses, and they’ve asked Zubaydah to submit evidence. He now seeks depositions and documents that would confirm his inhumane treatment in Poland—information that’s already been disclosed by unofficial sources.

The bigger case involved a lawsuit to obtain information on what is known to be the U.S. government being involved with torture and (to add insult) doing so as a result of mistaken assumption of the evidence the person had.  This sort of thing is going to happen.  

If you want to be generous, you can cite the stakes (9/11 and all that).  But, it happens.  And, when it happens, there should be a way for the U.S. government -- as much as if it was some sheriff who beat a confession out of someone (or tried to do so) -- to admit error and provide some degree of relief for the person.  Repeatedly, this simply was not done in this context.

A fractured Court (led by Breyer) rejected the request here.  Only Roberts fully went along.  Barrett and Kavanaugh had a short concurrence (they joined most of the opinion) that to me seems to underline how limited review of state secrets claims will be.  Thomas and Alito didn't support most of it, thinking he had even a weaker case.  Kagan agreed somewhat but would not have dismissed the case.  

Gorsuch (with Sotomayor) had a strong dissent. Gorsuch's anti-government power side (far from consistent) and outraged tone was appropriate here.  The best you can say about Breyer's opinion is that he was not really the fifth vote.  It did not skip over that "torture" was involved. He might have figured, especially since he did leave Z. a chance to try again and that a lot of the information is already known (but that works both ways!), him writing the opinion would lead to the best result as far as one could.

But, the net result was more of the same -- state secrets, which deserves sarcasm quotes here, was used an excuse to hide and paper over official wrongdoing.  It is -- well ironic is one way to put it -- something that we are told that the U.S. government -- who wrongly tortured someone in more ways than one -- cannot be forced to officially admit something (that is known) since it will interfere with future investigations. 

[To add one thing, one of the articles flagged that the Supreme Court is selective about supporting concerns about international commitments as seen by its blocking President Biden's position in the "remain in Mexico" immigration case. We have legal commitments that block some absolute discretion here and on balance this is a bad call.]  

Boston Bomber: The other case on Friday involved overturning the lower court blocking the death sentence here because certain evidence that could have mitigated guilt was not allowed.  There was also an issue of  pretrial publicity; the dissent did not address this, resting on the other matter.

One notable issue here is that not only did Biden say he was now opposed to the death penalty, but there is currently a moratorium in place (if based on somewhat limited grounds).  The Justice Department could have simply conceded error here (or changed positions and not appealed), the only real justification not to do so being that maybe the lower court opinion would apply not just for death penalty cases.  They shouldn't have continued the case. 

Barrett with Kavanaugh gratuitously concurred to question if a court of appeals had the general oversight power of district courts applied here. The majority [via Thomas] flagged that there was some doubt on the issue, but noted that the government did not challenge it.  So they granted it for sake of argument, but did hold that the court of appeals overreached here.

I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty. [Cite omitted] This case provides just one more example of some of those problems.

Breyer wrote the dissent for the liberals.  This is one of those cases where even people upset about the death penalty might be wary about opposing it.  But, the dissent suggests even here, there are troubling aspects.  Kagan and Sotomayor [both, as a correction made clear] didn't go along with this brief reference to Breyer's wider doubts about the death penalty.  It's non-absolute phrasing makes me a bit annoyed the two felt unable to join. 

More Opinions: Monday has been announced as another opinion day.  Maybe, we will get that old (fast tracked) religious minister in the death chamber opinion?  Kagan and Kavanaugh have yet to write though it's possible/somewhat likely one or both could have written a per curiam. 

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New Justice: Judge Jackson's hearing has been scheduled.  Spring will bring that bit of theater.  This suggests the whole thing should be over pretty quickly, and the senators (now with their 50th member back) can focus on confirming lower court judges.  Do as many as you can by December!  

One quirk here is that she should be (knock on wood) confirmed with months to spare.  Justice Byron White notified Clinton about the same time that he was retiring. But, RBG was not actually nominated until June.  Here, we will have a sort of "justice elect," which seems not to have happened before. (It did happen for a lower court judge.)

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Conference: The judges did not take the bench to release opinions but did have a conference today.  An Order List will come on Monday.  There is no conference scheduled next week.  The week after does have one.  Then, we will have two weeks of arguments, including as KBJ testifies.  

After the Order List drops, there might be miscellaneous orders dropping in the next two weeks.  And, there is by now basically the general assumption that that from time to time some shadow docket or whatever thing will drop too.  I will yet again say that I wish they at least had audio of opinion announcements.  Other courts have video.  

SCOTUS Watch: Orders etc.

In 2015, moreover, the United States rejected a request from Polish prosecutors to facilitate Abu Zubaydah’s testimony under the countries’ bilateral mutual legal-assistance treaty. Nonetheless, the government would permit Abu Zubaydah.

Coverage of the states secret case orals suggests that the government is likely to win, but (as in the past) litigation alone has some value. For instance, even conservatives like Barrett say the "t" word (torture) aloud. And, multiple judges (Breyer, Sotomayor, Gorsuch) also specifically asked about having the GITMO prisoner to testify himself (see also that article).

A letter (cited in the opening) sent to SCOTUS from the Biden Administration clarified the situation to some extent.  [The letter is linked at the article; CNN covers it without providing a link.]  The government, leaving open the right to redact for national security, is willing to let the prisoner write about his experiences using the process (explained) in place.  This all shows how even limited access to lawyers and judicial oversight can provide some checks to the system in place. 

PCSCOTUS: We continue have coverage of the draft chapters of the presidential commission's report.  SCOTUSBlog, which even as a blog specifically geared to SCOTUS has had limited coverage, has a helpful report on the proceedings on Friday.  It is fine to criticize and/or discuss the limited nature of the commission's actions etc.  But, this requires a full accounting of what they are doing.* 

(I also saw an interesting footnote that was reported earlier.  Two conservative members of the commission resigned, including notable "sane" Jack Goldsmith.  Why?  Who knows, but it is a bit weird, and notable. They so far don't want to say why, which you know, is wrong. Note the "do nothing and support status quo" theme of some coverage is a bit off given some of the critical comments referenced in that article alone.) 

Order List: There is no conference this week, so there will be a break from the weekly order lists, but today's was somewhat more notable than usual.  First, beyond the usual odds and ends of some note, the Supreme Court granted two cases involving tribal matters for full review.  They do not seem to be major cases (as if I'd know!), but we shall see.

As noted at that link and by various tweets on Legal Twitter, the Court also by two (by definition) unsigned per curiams -- without any cited dissents (so, you know, without dissent in fact), reversed two lower court cases that denied qualified immunity in abuse of force cases.  This is basically "error correction," something that they supposedly do not really want to do.  And, a few exceptions aside, it usually goes in a conservative way. 

Some comments on Twitter suggested the phrasing might be a flag to additionally restrict qualified immunity cases (e.g., "In one of its summary rulings this morning, #SCOTUS dropped a strong hint that *circuit* precedent may no longer be sufficient to provide “clearly established” law. That would be a *huge* barrier to damages suits against government officers who violate constitutional rights.").

Qualified immunity -- one of the many things that federal legislation can address if there is a will -- has been overused.  Without dealing with the weeds, the basic idea in my view is that people should generally have a broad right to at least try to show abuse occurred.  They might lose.  But, they should at least try.  And, individual actors (like a police officer) still might be protected; the ultimate issue is having some ability to get relief from the government in some fashion.   

Error correction clearly has some intent on clarifying the law though it is done in a rather opaque way.  Various justices last term flagged their concern about giving proper discretion to police and other public officials in certain emergency situations and so forth.  Such and such officer goes to a call where someone is allegedly at risk, and they have to think in the moment. Fine enough.  As applied -- clarified by cases they take for review -- the people can show their actions are acceptable.** 

Miscellaneous Orders: After I wrote this originally, SCOTUS dropped two separate orders.  One allotted order time for various cases where the Solicitor General has time.  Another granted a request by a challenger to speed along the SB8 case (this is not the U.S. case against Texas).  What this means is unclear -- various theories on Legal Twitter.

Book Review: Skimmed: Breastfeeding, Race, and Injustice uses the experience of the first black identical quintuplets to examine this subject.  I first saw it when Melissa Murray (always good for material) flagged in on Twitter.  (As I recall, someone talked about food and the law.)  And, it is appropriate to include here because there is a lot of law, including Supreme Court cases, involved in the mix.  The rest of the book tells their story. 

One thing (though the date is wrong) that is cited is an old Fifth Circuit case that says breastfeeding is an aspect of the constitutional right to privacy.  I am familiar with the case since repeatedly it is cited in string cites when some lower court opinion references privacy cases. As shown here, it has not had much influence as precedent, even as applied to the parties involved apparently.  But, the book's legal discussion includes what "might be," and on that front, it still is important.  

One interesting connection is the involvement of Susie Sharp, who became the first (white) female Chief Justice of the North Carolina Supreme Court.   I have a biography of Susie Sharp.  This book is written by a white woman, but Prof. Murray is not.  

Also, the book makes sure to make some comments about the freedom of choice, but is clearly pro-breastfeeding. In a few spots, perhaps a bit much, since many women very well would want, e.g., a doctor's office to have stuff on the wall supporting both breastfeeding and formula.   Finally, yes, it is wrong to "moo" at people who are nursing.  I apologize, however, for laughing a bit when seeing that.  It's okay to be a bit mean silently.  

A suggestion to include the book as an entry at a new book review website was turned down for the time being because of limited attention.  But, "Books in a Flash" is finally online.  I will mainly contribute "History" books for review and those interested can click the History link here, a few books already up. 

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* Note this line from a criticism (after I wrote this entry) on relying on term limits (which alone isn't enough, besides being a long shot anyway): "Perhaps this result was to be expected from a commission ostensibly created to study Supreme Court expansion."  

If this means "along with other things," sure. As spelled out in the executive order, "reform proposals" (more than expansion being out there) should be addressed.  I'm unsure if that is quite how many take it though. It sort of implies that was the primary reason they are there.  

The linked Slate article says these things -- including the shadow docket which has had a fairly recent uptake -- been "studied to death."  As compared to let's say civil rights when Truman had that studied?  It is upset conservatives (two less now) are on a commission -- apparently you need strong (as compared to weak links like Laurence Tribe) supporters of court expansion for legitimacy, but well conservatives? Surely not. 

The fact the analysis notes the commissioners -- who are criticized as too moderate, wary of change -- pushed back shows maybe we should give them some credit.  

** One of the cases is highlighted in this blog post.

The lower court opinion does not come off as patently unreasonable.  The Supreme Court per curiam -- without full briefing or argument -- decides by examining the facts (not their job really) that the situation on the ground is different from a previous circuit case relied on by the court of appeals.

The blog post reminds us of the George Floyd case.  I'm unsure if that is fair, since this case involves a much more momentary use of force. But, what bothers me yet again here is that the case seems to turn on debatable details that the Supreme Court reached out to "error correct."  

Maybe, the lower court was wrong.  If so, it was far from glaringly so.  The case they cite has multiple similarities to the current case.  The notable difference seems to be that the guy here had a knife on his person. The court of appeals, however, note he also was just shot with a beanbag gun. And, there was reason to judge the knife was not a danger.  

These are FACTUAL questions for a jury to decide.  If the case is so clearly reasonable, that can be judged then.  Consider a call that seems to many to be pretty clear.  A replay very well might determine there is no grounds to overrule.  You still have a chance to try.  It's not for replay office to second guess an agreement among the umpires that the call was at least somewhat open to debate (if that is the rule!).  

The Supreme Court tries less than seventy cases for full argument these days.  Why the hell are they interfering with these marginal cases?  They do not only refuse to change the rules for qualified immunity.  They want to reach out and error correct the hundreds (or more) cases like this, in the process affecting many more. Without argument.  It's wrong.  

SCOTUS: Order Day

We had big news today but there were various other notable things in today's Order List. There were also two oral arguments, involving disclosure laws (current Court worse on this than the Kennedy/Scalia version) and a chance to get the feds to at least partially cover payment to clean-up a toxic waste dump of Guam (170K, no vote for POTUS, only a non-voting delegate in Congress, and maybe a t-shirt). On the former, Barrett was asked to recuse, including by one of the people supporting a court expansion bill.

Okay. Let's deal with some of the other stuff in the Order List.  There was a per curiam without a dissent that was one of those error correction cases that the Supreme Court occasionally takes.  Justice Sotomayor, for one, has flagged that sort of thing as liable to be biased toward prosecution cases. Back in 2016, there was already a clear trend toward that in habeas cases.  This one at any rate flagged what it held to be a mistaken interpretation of being "in custody" in a habeas dispute that below helped the defendant. 

The other written opinion was a dissent by Alito (and Thomas), whose position on the now decades long practice of avoiding taking disputes among states.  He very well might have a point that the Constitution warrants at least minimally substantively taking such cases, one of the jobs of the Supreme Court being to handle disputes among states.  For a different view, see here (I comment too).

The Court did not accept a state challenge to the Biden Administration's change in policy on the "public charge" rule, in part for not going thru the Administrative Procedures Act.  But, in an extended paragraph, it flagged the states still can bring a challenge later on.  So, this might be a red flag that Biden might (like Trump did a few times) get in trouble on APA grounds, which makes it harder to get rid of old policies and/or permanently put in place new ones.   

Separately, SCOTUS wanted to know the Biden Administration's plans regarding a more restricted family planning rule that Trump put in place.  Also, a request for comment in another case (Breyer did not take part -- like Alito in another case, this is likely a financial conflict issue).  

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The big news, which was just a matter of time -- especially on the Barrett Court (Roberts supported the punt in the last 2A case) -- was a case taken on this question: "Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment." The original question: "Whether   the   Second   Amendment   allows   the   government to prohibit ordinary law-abiding citizens from  carrying  handguns  outside  the  home  for  self-defense."  

I think after ten years that it makes some degree of sense really that the Supreme Court does more than drop a mostly forgotten punt (the eight person Court stun gun case) involving "arms" outside the home.  We can disagree with Heller and all that, but there were loads of lower court rulings -- with some disagreement -- on the general matter of regulating arms (mainly firearms).  A basic job of the Supreme Court is to provide some basic unity, and they are going to eventually decide this general question.

The basic problem for some is going to be the result.  But, another is the people making the decision.  A tainted Supreme Court, especially given on this issue there is a clear shift on liberal/conservative grounds (Roberts more to the center here) based on those new members. As with the campaign disclosure case (where the state might lose on narrow grounds with a different Court), if such a basic question is decided, we need a Court that we have a reason to respect on legitimacy grounds.  

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There were two other interesting grants -- something about the power of a local government to censure (huh) and a state secrets case, but one that feels like a glaring "state is going to win" grant since it involves active CIA goings on. On other facts, there might be hope that the tainted long rule where state secrets are used to deny justice (including in cases where the stuff is not really secret), but not sure this is a good grant there. 

(The case is the first GITMO case SCOTUS took for over a decade and involves "black sites" and torture.  Plus, here too, just how "secret" things are is rather unclear.  The Trump Administration asked for review and the Biden Administration has gone alone so far.  The cover-up has been something of a bipartisan effort though the Obama Administration did make some effort to bring out in the open reports of abuse.)  

ETA: Also, with COVID distancing and all that, even with them all being vaccinated, it was reported only the Chief Justice will show up at Biden's Wednesday address to Congress (saw a reference to only 200 members of Congress showing up too, at least in the chamber itself).  Probably will be a bit weird for him.

Justice Beyond Criminal Justice

The failure so far to prosecute regarding the death of Freddie Gray does not mean "no justice" is possible. Justice does involve prosecutions (and how we do them), but in a big picture way, that might be the lesser approach. Prosecution is a last resort with a high bar while there are various other things to do, including civil remedies, political responsibility (see, e.g., 2006 and 2008) and changing policies. See., e.g, racial equality after Brown.

And Also: The contraceptive rule is a compromise.

Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

Agree with the thesis of this book on the importance of civil institutions in the development of constitutional law. It covers a lot of ground and interestingly suggests over time the Bush Administration did greatly change its ways. Found the discussion a tad tiresome though perhaps since it covered old ground in a way didn't find too fresh and caught various errors (e.g., Clement didn't really defend the law in Heller) that annoyed me. Worthwhile overall.

The Rape of Nanking

I re-read this book regarding "savage butchery [by Japan] in China [during] the destruction of the city of Nanking in 1937, then the capital of China." I also once read her book on the father of the Chinese missile program, basically thanks to the Red Scare in the U.S. that drove him out of this country. Did not read her history of Chinese-Americans yet. She later committed suicide and my free copy had the local news clipping reporting that.

The Faithful Executioner: LIfe and Death, Honour and Shame in the Turbulent Sixteenth Century

In this vividly drawn portrait of the life of an early modern executioner, Meister Franz Schmidt, Joel Harrington immerses us in the world of crime, violence and honour of 16th- and 17th-century Germany.

This can be a Rev. Joe (haven't done that for a while) segment as seen by the title. One theme of the book was that the long time (about a half-century, especially given his apprenticeship with his dad) executioner, torturer and corporal punishment guy for Nuremberg (most of his career) Germany in the 16th and 17th Centuries was his sense of morality.  Meister Franz Schmidt left a journal of his work (and a later letter trying to protect his family's name) and the historian here shows us how he saw his job as bringing justice, even to teenage thieves, even if this was by the wheel and confessions obtained by formalized torture.

We get a very good feel of the overall setting (including such things as the fear of arson) and can imagine the hellish jails and torture cells, questions sent in by air vent or from outside the cell. The author has to infer various things since there is little of Schmidt's voice especially regarding his personal life.  For instance, being an executioner was a nice living if you can get it, but socially poison for unsurprising reasons.  The author infers a few things here from the evidence; we would like to know a bit more.  The executioner comes from middling folk (his father was originally a woodsman) not that introspective about his work; still has things to say. Like other historical figures, it is amazing what we can determine from this distance while hoping for more. That's part of the charm -- imagining.

One part of history that I think is often not expressed or at least realized by some people is the differences of the past. We see this in movies, especially when (right you are John Oliver) the character are played by white people when they are not.  You lose the color, so to speak, there especially the different world.  The book reminds us that 1600 Holy Roman Empire (even if Voltaire told us it was none of them) was that though basic similarities can be felt as well. The people here might come from a more nasty world (e.g., torture exists in civilized countries today, but formalized torture of the nature here is still of a different animal)  but we can still recognize them. The legal reforms of the early 16th Century is an example, this is the "early modern" world, with the Protestant Revolution just occurring etc.

The book is helped by many photos and a basic down to earth tone. It is also that mid-200s or less length that appeals to me these days. At times, it did feel a bit dry; this just might be my grumpiness the last few years -- too much online reading, perhaps.  Overall, recommended.

Further Reading

A pessimistic take on the state of abortion rights. An issue brief on solitary confinement and the "dignity" component of the Eighth Amendment (and more). Various articles cited can also be accessed. No, "dignity" is not just something Justice Kennedy talks about. I (Joe_JP) added a couple comments to this 9/11 post. Anyway, ready for the summer to be over.

Decision Day & Other Constitutional Concerns

Update:  Talking Points Memo, etc., has some good coverage on the racial identity story discussed below. SCOTUSBlog has a view from the courtroom segment that covers a bit of amusement that we have missed given there is no audio or video of opinion announcements.  Again, what is the reason for that? The reasons applied to oral arguments do not really apply, especially since there we have transcripts.

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First, I appreciate the citation of my comment in another blog post regarding the use of per curiam opinions. As noted, it is the use in that specific case that really concerned me. The usage in general is another matter and the discussion cited and expanded is of academic interest generally speaking.

As to the merits of the abortion opinion itself, this video is helpful.  It is of limited relief, but it should be noted that the opinion is not a total loss -- the district opinion rulings is upheld in a limited way to help abortion providers.  This underlines the breadth of the law in question as well as the rearguard efforts in dealing with them -- some success is better than nothing in most cases.  As are denials, such as the ultrasound law struck down on free speech grounds with Scalia (for whatever reason) being the sole dissent.  Again, an underused approach on the SCOTUS level (leaving aside Rust v. Sullivan),  Casey briefly dealt with this:

All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. Cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

The opinion there on substantive liberty grounds notes that "If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible" in respect to various information required to be provided.  The woman can be assured that "the full consequences of her decision" will be protected, which is also used to defend waiting periods.  The same thing is alleged to be the reason for use of mandatory ultrasounds, but the lower court here thought it just was too blatant here.  The limits of this rule is unclear, except that it is somewhat more flexible then earlier cases.  Still unclear. 

Moving on.  Today was another Decision Day for SCOTUS though the "big" cases aren't quite here yet.  SCOTUS trivia seekers will note today is the day (unless not joining a footnote counts) that Justice Breyer dissented for the first time this term.  Double action -- in a bankruptcy ruling and one involving the proper procedures required to be on notice why a non-citizen spouse [is not allowed a statutory right to stay in the country.  ScotusBlog etc. can be accessed for more information, but my immediate concern is why Chief Justice Roberts felt a need to join Scalia's overly restrictive due process "liberty" discussion plurality opinion (not even controlling, given Kennedy/Alito had the most restrictive to obtain the votes position).*

Finally, though it is somewhat separate, I'll include Veep and John Oliver here as well since they do touch upon constitutional concerns.  Both were good episodes though sorry John, that mistaken map joke is getting old.  Veep ended with an apparent Electoral College tie though we just might have the possibility of court challenges and even disloyal elector opportunities.  The possibility of the v.p. candidate becoming President was offered and if no presidential candidate is chosen, he does become acting President with the next step somewhat unclear.  The veep being a member of Cabinet is also interesting. A member of the legislature (shades of Cheney's claim?) cannot be, but who took Cheney seriously anyhow.

As to Oliver's torture segment, very good, including some wicked use of Helen Mirren narration (the Peter Rabbit bit ... ROFL). It added the usual argument that torture simply doesn't work. I don't believe that. It very well might in certain cases. Let's be honest about that. There are ways to show this -- people have via torture told information that was found out to be true. Let's say a mobster using it to get information.  This doesn't make it right. It is still wrong & the fact that as a whole it doesn't work well even on a sociopath pragmatic ground is true enough. The examples given by John Oliver here show this. It also causes blowback. So, along with it being against our basic values, torture doesn't "work" in the end.

Finally, John Oliver made a passing reference to this controversy, which until then I missed -- just too many "things" out there, you know?  She has stepped down though has yet to admitted her overall choice to "be black" is a problem.  As the article suggests, however, she doesn't appear to have been truthful in the specifics and it is unclear just how consistent she has been.  Still, it wouldn't be the first time a "mixed" person identifies differently in different situations. And, I'm unclear exactly the "rules" here.  OTOH, as this NPR story notes, this isn't merely the case of a very light person with a black grandfather or something.  She rather blatantly "became black" in certain ways and there is clear evidence that she did so in deceitful ways. 

The matter provides much fodder for discussion and her family outed her when she made an allegation of being a victim of a race based hate crime.  But, she seems a rather atypical cases, so don't know how much we should really rely on her to send some sort of message. If some college does not want to count people like this when determining "pluses" for placement, which will come up in some other context as well, fine.  No rule is going to be totally "clean" there and other cases of people in leadership roles of various types, liberal or conservative, with created identities can be found. Still, just what does "being black" mean?

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*  The distaste the plurality has with around a century worth of substantive due process protections really makes me surprised that Chief Justice Roberts signed on to the opinion given Alito did not.  The breadth of the plurality leads me to feel it warranted to add on this footnote, partially as a reminder of the alternative vision out there from Scalia-land

Was such a broad rejection of the "liberty" in question so necessary when a narrower way to deny relief was necessary, Chief Justice?  Scalia speaks of a "artificial world of  ever-expanding constitutional rights" that "this Court has seen fit" to protect and have "indulged a propensity for grandiloquence when reviewing the sweep of implied rights."  And so on. 

There was some suggestion in the commentary [as Chris Geidner noted on Twitter] that the plurality did not recognize a "right to marry."  It did note "right to marry" precedents and argued that the right to live with one's non-citizen spouse in the U.S. did not fall within its contours. And, Justice Thomas most probably would deem it a privilege or immunity of citizenship (how much the non-citizen spouse changes things is unclear), while I have no reason to think CJ Roberts doesn't support a right to marry either.  But, the plurality did define the "liberty" historically protected by the Due Process Clause narrowly to basically mean freedom from restraint, not marriage itself.  In effect, bare precedent saved the day there and overall concern of "stretching" is clearly shown.

Finally, the much repeated rejected Scalia narrow historical approach was sadly joined by CJ Roberts here.  For instance:

While noting that modern "equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Such a narrow approach in which decades of practice is "all too recent" to matter for due process purposes is rightly rejected by current precedent.  Again, especially with Alito not joining in (he more strongly against a right to same sex marriage in Windsor), how much this tells us about the upcoming SSM cases is far from clear. And, the right to live with your non-citizen spouse in the U.S. (or to have a right to notification on reasons why you cannot), non-trivial as it surely is, is different from not having the right of to be married at all.  Still, makes you go "hmm."

More here. The fact the wife is a naturalized citizen and Afghan refugee only adds insult to injury.  As noted here, but not apparent in lot of coverage (hate that -- so often to me obvious questions are left unanswered), they continue to live apart, as they have since 2006.  Sanctity of marriage indeed. 

Sunday TV (After Mets Made Up For Yesterday)

Good finale with some touching moments actually that ended with a 269-269 tie (hey! it's the booster from FNL as the other candidate!). John Oliver was good too, including using some Helen Mirren audio in a torture segment that ... seriously ... was ROFL funny at one point (had to do with Peter Rabbit, going horribly wrong). Good material, but you know, it might actually work. Sometime. Unclear when. With blowback. And, it's still wrong.

"political differences"

Update: For some reason, Justice Scalia thought it a good idea again to opine about how torture can be constitutional. I agree with Stevens/Ginsburg/Kennedy in Chavez v. Martinez, but even the controlling majority understood coerced testimony not used for a criminal case or punishment (though de facto, it probably was here too) was actionable at some point. 

Someone flagged Eric Posner's discussion regarding (allegedly) "the legal and normative problems with prosecution" as well as a potential additional barrier arising from the Detainee Treatment Act of 2005.  He can be used as a sort of example for a trend of thought, which is the usual value of such references on blogs, Twitter and the like. Glenn Greenwald, who is a tool but has some good points, once noted this and it helps answer the "it's just one person" response.  We always are making selections here.

[For those who rather read sentiments from those who seem likely to actually support restraint of executive discretion in this context, this blog might be a good place to start.]

Eric Posner's strong executive power beliefs does not lead me to take his comments totally at face value.  He does voice some of the realistic reasons why prosecution isn't likely. If prosecuting a single police officer is so hard, you know what you are up against.  But, "hopeless cases" are self-fulfilling prophecies when the line is that it is just "not done" to prosecute this sort of thing. Also, as Lederman and Barron wrote etc., there is no total "unwritten norm" that Congress "cannot criminalize certain behavior that the president authorizes on national-security grounds." Our "system works" by putting limits. Political means aren't the only checks.  

Finally, it underlines why I can't take Posner totally at face value if he says the "best argument" is that "criminalizing politics" is wrong. TORTURE shouldn't be seen as mere "politics."  But, Posner voices the mindset of a lot of people. Torture horrified people for hundreds of years. It is quite firmly "worse than death" -- death even of civilians is allowed in wartime. Torture is not. Posner is helping the segment of the population that wants to degrade torture.  This is a key reason why the report is important even if it doesn't bring prosecutions. It helps fight this mindset. That torture is like some tax policy -- its "politics" that one administration might support, another might not.

As to the Detainee Treatment Act of 2005, experts can debate it, but think it wouldn't necessarily serve an out for all involved, especially given what was known by those involved.  At some point, I also wonder if a too wide exception here would violate international law restraints. However, I guess perhaps only us peons don't have an "ignorance of the law" excuse. Finally, regarding the "they are just hypocrites" philosophy, various nations actually seriously have upheld such norms, including Great Britain and Canada in recent years.  And, we should try to lead, not follow. Maher Arar is a sad example.

Ultimately, things are often wrong for various reasons -- pragmatic, principle and proportionality (extreme arguments) might be one way to think of it.  The report is powerful in that it can be used in more than one fashion.  If something doesn't work or leads to negative blowback, it often is easier to respect principle.  I think ultimately our own souls here are very important, even if we don't care about the bodies and lives of others. 

"Why the Founding Fathers thought banning Torture Foundational to the US Constitution"

Juan Cole. Fifth and Eighth Amendments particularly.

The Railway Man

Caught a bit but could not get into the film and the book is written in a way that fits the author but not something I could read thru either. Still, read parts and it is powerful stuff of someone who suffers torture and imprisonment in WWII and decades later (the film starts with a meet cute; the book is more linear) meets a translator from back then, obtaining some sense of closure and release. Hard to imagine humanity's cruelty and survival at times.

Then They Came for Me (aka "Rosewater")

The Iranian-Canadian journalist Maziar Bahari took part in a joke segment for the Daily Show, not knowing it would be used as part of the "case" against him by Iranian authorities after the 2009 elections. Jon Stewart later directed the akin to a novel account of Bahari's four months of hell in prison, a film coming out next month entitled Rosewater.

“Everything You Need to Know About the CIA Torture Report in Under 4 Minutes"

More here.

"The Reclamation of Torture"

A good discussion, by a lawyer of a victim, including how the past tense makes it easier. He does welcome being open but not half-measures:

To acknowledge that we tortured people in our custody is all to the good. Indeed, we should do more than acknowledge it; we should make a careful and complete accounting, and if the Senate report is ever released, we may go far toward precisely that. But to imagine that all this was the product of a past that bears no connection to the present is foolish. Worse, if we reclaim torture but ignore the public institutions and political assumptions that led to this behavior, we are willfully ignorant. And if we fail to see that they are with us still, in surveillance that accepts no limit, drones that observe no boundaries, and a war that cannot end, we are truly blind.

I agree it is easy to say "it's all in the past" but do welcome use of the "t" word, which wasn't used in part because of its moral and legal imagery. Some was like "just can't figure out where the line is!" and like those who make "marriage" small (just to make children the old fashioned way!), wanted to cheapen and downplay something that horrified for centuries. Only something akin to the rack would be clear enough for them, though there were cases of people hung up and suffering something not too far from that. Basically, "torture" is something "illegal" that wasn't done (or now "done" but "what is past is past").  The present matters too. 

It is all to the good to call Obama, e.g., out for making excuses and ignoring treaty obligations, especially if blame is shared for society in general who share the sentiment. The buck stops with him but along with past wrongs like slavery or racial segregation, singling out him at some point misleads.  There is no realistic chance he is going to put things on the line and in effect say that Bush and Cheney should be in the dock. The President is not some savior who is going to jump far outside of the public on this subject though it would be nice if he did. And, I think it somewhat unfair (only somewhat -- really, the comments of a few strongly denouncing him doesn't cancel out the normal line which except for now and then ignores it) to single out only one part of President Obama's remarks.  POTUS said we "tortured" and “we did some things that were wrong." The past tense is noted, but even that is too much for some people.  He didn't say it was justified because of 9/11.  It was "wrong" and it was "torture."  This is notable though you know ... FERGUSON.

That is the bare minimum necessary to reduce mistreatment, including torture, in the future.  You need to say it is wrong -- not too long ago, the official line was that it was right and saying waterboarding was illegal was just so hard.  Also, the Senate report is notable in itself -- it might not seem like much, but these investigations are official accounts that put on record what happened. It's sort of like bashing the MSM and using them as source material.  Again, it isn't enough, but it is part of the bare minimum. It also provides an oversight role for the legislature, members of whom will continue to feel an obligation or at least right to see what is going on at least to some degree. This too will on some level serve as a check.

It is all very depressing and on some level what is done seems so trivial, even when it takes a lot of work and a bit of courage to do them. Thanks for those who fight the good fight, present tense.

Saying It Aloud Is Something

Even before I came into office, I was very clear that in the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it's important when we look back to recall how afraid people were after the twin towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen and people did not know whether more attacks were imminent and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And, you know, it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. A lot of those folks were working hard under enormous pressure and are real patriots, but having said all that, we did some things that were wrong. And that's what that report reflects.

It might not sound like much, and on some level it is not, but it matters.

"Challenging the Arguments of Bush-Obama ‘War on Terror’ Continuity"

Obama is far from ideal, but it is not just "new boss, same as old boss," [Comey/some overlap] one of those lines that pushes my buttons. Change requires knowing the breadth of the problem. BTW, props for ACS, the liberal answer to the Federalist Society.

Academy Award Fodder? Yawn!

Okay, so I turned off both Zero Dark Thirty and Life of Pi, watching about an hour combined, bored in both cases. Still I could determine how the torture scenes were used in one (mixed message) and where he got his name in the other. So, it wasn't a total loss.

More "Torture Being Illegal Is So Complicated" Stuff

I find his overall federalist theory of the 8A annoyingly reductionist and a bit too precious, especially if he seriously doesn't realize the evidence at best suggests it as a possibility, but really now. It is depressing that torture being fundamentally illicit is so hard for some people. The potshot that I was saying all "very bad" things are unconstitutional is tiresome.