Morality of Interrogation: A Thought Experiment

I have always been a person who believes that the United States should always hold the moral high ground, and I didn't change my mind about that after 9/11. If there is anything revealed by the debate sparked by the "torture memos," though, it is that it is hard to see where that moral high ground is. In this post, I'm going to try to work through this and see if I can arrive at a conclusion.

I watched a great debate between FNC anchor (and attorney) Megan Kelly and Sr. Legal Correspondent Judge Andrew Napolitano on Beck yesterday. As interesting as it was, it also demonstrated the limits of using legal thought to work through this issue. The debate came down to an argument about the definition of torture. Kelly relied on a definition created by Congress that is used for interpretation of the Torture Convention, a standard which the Judge correctly pointed out is so narrow that it wouldn't include medieval torture devices. The Judge offered up a universal standard, “Any intentionally inflicted cruel or inhumane or degrading treatment, unauthorized by a court of law, perpetrated for the punishment of the victim, to extract statements from the victim, or to gratify the perpetrator,” which IMO makes a lot more sense intuitively. So I think in terms of definitions, the Judge has it right (although in legal terms, the "universal" definition doesn't have the weight that Congress' definition has, so Kelly won on the law).

Unfortunately, I don't really care that much about the law or the definition for their own sakes. I care about knowing where to draw the line, and that isn't necessarily determined by a definition. And the law should be based on that line, not the other way around.

I think the Judge's definition of torture makes sense linguistically, but morally, I cannot say that it is categorically wrong to "inflict cruel or inhumane or degrading treatment to extract statements" from a terrorist. (I can say that it is categorically wrong to do so for the purpose of punishment--without authorization by a court, or for the gratification of the perpetrator). Which means this definition isn't the last word for the purpose of drawing any lines. I think we need another principle.

What principles should be in effect for the boundaries of interrogation? Well, going back to the definition for what it is good for, I think it should be a principle that we do not punish a person without sanction of a court. This is the same principle that forbids vigilantism and is one of the pillars of the Rule of Law. A second useful principle we can take from the Judge's definition is that we should never inflict harm/cruelty/inhumanity/degradation/whatever on a person for sadistic purposes. Again, this should be obvious, the interrogator is an agent of the state and must act in the interests of the state, not his/her own. These two principles are easy because they both involve purposes which are illegitimate.

But the other purpose--extracting information--is a legitimate purpose because it is a necessary part of the executive's responsibility to protect the lives of its citizens. Knowing that the state has the power to do this, we must use the rights of the individual to define the boundaries of this power. The rights I think applicable here are life, and what I'll call a freedom of bodily integrity (which would be violated by, e.g., a battery). Liberty might be applicable in some cases, but since this issue is based on detainees being terrorist suspects or enemy combatants, the confinement of both are questions settled epochs ago. Life might be easy enough because of its magnitude. Or is it?

I do see a balancing relationship at work here, involving the weighing of the state's duty to save innocents (indeed, we could even weigh the lives of those innocents themselves) and the rights (including the lives) of the suspects/detainees. And I feel it necessary to point out that it is universally accepted in civilized countries that it is NOT wrong to kill when it is necessary to prevent imminent death or great bodily harm to an innocent, or sometimes even to prevent a forcible felony. So, although I feel a natural urge to categorically say it is wrong to kill a suspect/combatant under any circumstances short of a capital conviction, the aforementioned principle gives me pause. Of course, this principle usually applies to a criminal being killed while attempting a crime, while what we are considering involves a suspect/combatant that is in custody, while his/her comrades are attempting an attack. Is that an important distinction?

Perhaps it is. In the case of a criminal in the middle of a crime, there is no doubt. Whoever is using deadly force to stop the criminal knows the person he/she is about to shoot is the the criminal and knows what harm is being threatened if he/she does not act. When a person is in custody, there is always the question of whether we have the right person. We also cannot always be sure what the person knows, and whether obtaining that knowledge will be sufficient/timely enough to prevent an attack. We may not even know that there is an attack planned to begin with. There is an enormous difference between killing someone knowing it will save an innocent and killing someone hoping that it will. Also, when a person kills a criminal to prevent a crime, the criminal being killed and the person threatening the harm are one and the same person. A terrorist/combatant in custody is not the person threatening the harm; his/her comrades are. The issue here is one of (potential) innocence. So, we have at least two useful principles here.

One principle involves third parties. As mentioned above, the suspect/combatant in custody is not the one who will carry out the attack. In other words, the person who might be killed to prevent the attack may be innocent of the planned attack, while in the justifiable homicide example the person killed is not innocent. The third party issue also comes up on the issue of death, and perhaps harms less than death as well, because death would have to be inflicted on a person other than the person who has the information if the interrogators had any hope of getting it. (Threatening death unless the person talks doesn't work, because killing the person with the information will not result in getting the information, therefore, the purpose of killing must have been punitive, sadistic, or some other illegitimate purpose). I see a bright moral line against harming innocents in order to extract information from another. Doing so would be to become the very evil we are fighting against. However, it should be noted that co-conspirators are NOT innocent. So threatening to kill a suspect's/combatant's family is out-of-bounds, while threatening to kill another member of the plot may not be.

The other principle we can derive from the homicide justification is that that one of the key lines in this issue is formed by what we know. When we know that there is an attack planned, when we know that the attack would kill a large number of people, when we know that a suspect/combatant in custody has knowledge of the attack, and when we know that we could prevent the attack if we obtained that information, it is morally justified to kill to obtain that information. A fortiori, (and for the sake of avoiding the logical absurdity of a dead person giving up information), harms less than death are also morally justified. But, as our knowledge decreases, then so does our justification.

I can think of a few key points on the scale that would effect the balance and determine the level of coercion that would be justified. Permanent injury would be a big one. Like death, permanent injury is an extreme violation, where the rights of the suspect/combatant are at their highest ebb. Arguably, some sorts of permanent injury may be worse than death. So this has to be off the table in all but the most extreme circumstances; i.e., cannot be done unless the interrogators know for sure that inflicting the harm will save many innocent lives.

If the interrogators know for sure that a suspect/combatant has knowledge of an attack, but do not know enough about the attack to know whether the information the suspect/combatant has will enable them to prevent it, the government's interest is still at a very high ebb. Some level of coercion is therefore justified in these circumstances. Death and permanent injury are not. But I cannot say it is wrong to inflict pain, discomfort, humiliation, etc. upon a person who has information about an attack and refuses to disclose it otherwise.

In the vast majority of cases of individuals being detained, we will not know what information they might possess. The will of course still be interrogated. But without knowing for sure, or at least having probable cause to believe that they have information, inflicting any sort of harm upon them cannot be morally justified. In these cases--the vast majority of cases--the lines that Judge Napolitano described are appropriate. Whether criminal suspects or enemy combatants, they should simply be detained and questioned prior to being charged or detained for the duration of the conflict, respectively.

Summary

• The debate about interrogation should be on moral, not legal terms. The law should be written such that it tracks the moral boundaries at issue.
• The moral boundaries of this issue are defined by a balancing of the duty of the government to protect innocent lives (and the value of those lives themselves) vs. the rights of the suspect/combatant in his/her own life and bodily integrity.
• Purposes such as punishment and sadism are illegitimate in the context of interrogation. Punishment may be inflicted only upon sanction by a duly authorized tribunal. Sadistic purposes are never legitimate.
• The principle of justifiable homicide, widely accepted in the civilized world, is assumed to be morally correct and is used as a benchmark. It is morally justified to kill when doing so is necessary to prevent death or great bodily harm to innocents, and when the person to be killed is involved in bringing that threat of harm upon the innocents.
• Therefore, it is morally justified to harm or even kill a terrorist/combatant when doing so will prevent the death of innocents. This assumes (1) actual, certain knowledge of the interrogators that the knowledge obtained will in fact prevent an attack, and (2) the person the harm will be inflicted upon is culpable in a meaningful way for the planned attack (i.e., a co-conspirator). This combination will almost never be occur in reality.
  
• The balancing of interests and rights tips in favor of the suspect/combatant as the interrogators' knowledge becomes less certain. "Enhanced interrogation techniques" that do not cause permanent injury can be justified when the interrogators know that the suspect/combatant has information that, if obtained, might lead to innocents being saved.
• Any infliction of harm, pain, cruelty, degradation, etc. is inappropriate in the majority of cases where interrogators have no knowledge that the suspect/combatant has information about a planned attack and is simply being subject to routine questioning.

Closing Remarks
I think the tactics revealed in the "torture memos" are consistent with what I've concluded can be justified when the interrogators have specific knowledge that the suspect/combatant has information about an attack. According to the memos, the interrogators did in fact have such knowledge. I therefore do not morally condemn what was done, but rather applaud the use of these techniques, within the boundaries described in the memo, as being quite reasonable and appropriate, especially if they prevented planned attacks. I do worry, however, that there is a danger that these techniques might be used more routinely, which would be a problem.

When I started this, I thought I would end up condemning waterboarding and the "caterpillar treatment." The justifiable homicide benchmark was not something I had thought about until I was halfway through this, and it's changed my mind about the issue. I think I had an association in my mind between "torture" and our enemies--our enemies use torture, therefore torture is wrong and we should not do it. This is faulty reasoning, as our enemies also do things like punish murderers and enforce contracts, but those are obviously not wrong. By analyzing this issue on purely moral terms, I was able to dispense with this association.

I don't think "enhanced interrogation techniques" makes us evil or more like our enemies. I don't feel any moral outrage over the idea that someone in the DPRK, for example, harmed a domestic terrorist to prevent a bombing that would have killed hundreds--that is not evil. I feel outrage over the idea that someone in the DPRK was mutilated to get a family member to confess to a thoughtcrime against Dear Leader--that IS evil. The moral boundaries I've outlined prevent us from crossing the lines that our enemies cross. We will still hold the moral high ground.

I'll close with a quote I read about the piracy issue that is equally poignant here:

Piracy, of course, is hardly the only form of barbarism at work today: There are the suicide bombers on Israeli buses, the stonings of Iranian women, and so on. But piracy is certainly the most primordial of them, and our collective inability to deal with it says much about how far we've regressed in the pursuit of what is mistakenly thought of as a more humane policy. A society that erases the memory of how it overcame barbarism in the past inevitably loses sight of the meaning of civilization, and the means of sustaining it.
--BRET STEPHENS

A Confusing Lack of Policy

Twice in the last several days, our allies have captured pirates, only to release them:

The Netherlands nabed seven, and had this to say:

He said the hostages had been held since last week. The commandos briefly detained and questioned the seven gunmen, he told Reuters, but had no legal power to arrest them.

"NATO does not have a detainment policy. The warship must follow its national law," he said.

"They can only arrest them if the pirates are from the Netherlands, the victims are from the Netherlands, or if they are in Netherlands waters."

The Canadians got a few too, with the same result:

Lt. Cmdr. Fernandes said Sunday that the pirates were released because they cannot be prosecuted under Canadian law. He said the decision to detain pirates was a matter for national authorities not NATO.

What the hell? Before, it seemed the normal M.O. for the US, UK, and EU was to send these guys to Kenya for prosecution. Maybe there is something weird going on, with different commands having different policies. There are at least 4 different task forces (CTF150, CTF151, NATO Standing Maritime Group, and EU NAVFOR) operating in the area.

The Dutch ship, HNLMS De Zeven Provinciën (F802), is part of the NATO group, and the only Canadian ship on the OOB is the HMCS Winnipeg (FFH 338), also in the NATO group. So, I'm guessing that the NATO chain of command hasn't bothered with setting a policy here, while the CTF's and possibly EU NAVFOR probably have.

In any case, both the lack of a NATO policy, and the lack of domestic univseral jurisdiction anti-piracy laws in the Netherlands and Canada, is appalling.

Never Waste a Good Crisis

Now that the USN has successfully rescued Captain Phillips and eliminated or captured all four pirates, we should be using the increased public awareness of the piracy problem to improve our anti-piracy policy. A few remarks:

Implications of Somali Piracy
1. Piracy in and of itself represents a threat to the economic interests of the United States. In addition to shipping companies paying out ransoms, insurance rates are going through the roof, and in some cases shipments are being re-routed, making the voyages longer and more expensive. Quite simply, piracy is an intolerable drain on commerce.

2. Although it is my opinion that the Somali piracy is organized crime, not terrorism, the success of the pirates thus far highlights weaknesses of the sort that terrorists can exploit. We should anticipate that terrorists will hijack vessels in the future, but with much more sinister intentions than holding the ship and crew for ransom. Possible terrorist missions could include threatening execution of hostages in exchange for political demands being met, causing a massive oil spill, sinking a ship in a narrow channel to block it, exploding a liquefied natural gas carrier, or attempting to collide with other vessels. It should therefore be a high priority to develop effective anti-hijacking tactics, as well as deploying technologies appropriate to this mission.

3. The limitations of the USN in dealing with piracy was demonstrated by this situation and others. Pirates are well-aware that they can succeed provided they are able to stay in possession of the captured ship and crew, allowing them to get to land.

4. The lethal violence used by the French Navy and USN may have second-order effects. On one hand, it may deter pirates into finding another line of work (this would surely happen if enough pirates met their demise that they could could count on being killed or captured). On the other hand, the pirates have already vowed revenge against US and French mariners. The gauntlet has been thrown, and over the short term, we should be prepared for an escalation of violence against US and French targets.

Developing Anti-Piracy Policies
1. Current ROE: CTF-151 will come to the aid of ships in distress and attempt to capture pirates caught in the act. This represents an evolution from previous ROE where pursuit was not authorized. Captured pirates are usually handed over to Somali authorities in Puntland, or to Kenya.

2. I agree with other commenters that the protection of US-flagged ships should be a priority for the US Navy. I am all in favor of our warships continuing to act to protect international trade in general, but, when a US-flagged ship is transiting this area, US assets should be allocated to them first, and to other traffic second. The vow of the pirates to take revenge upon US mariners should underscore this imperitive.

3. Merchant ships are generally unamred. This is not due to any international law prohibiting the carrying of arms, but rather because of legal difficulties that would arise in various destination ports. The use of small/mounted arms has been successful in preventing successful boardings, as the attempted attacks against the USNS John Lenthal and a German supply ship. The pirates use small, open skiffs to approach their targets, often having to chase them and overtake them slowly. They are relatively easy targets and will usually turn and run if fired upon. The lack of defensive arms on merchant ships is one of the principal factors enabling piracy, and is likely the lowest-cost solution (not considering legal difficulties or increases in insurance rates---i.e. legal BS).

In my opinion, arming merchant crews is a no-brainer. Unfortunately, foreign laws will likely make that impossible, and little can be done about that. It is a shame, because the purpose of law is to protect the lives and rights of people, and to facilitate efficient business. In the case of piracy, these laws are making people vulnerable while making business more difficult. These laws ought to be changed, but there is no way to "reach into" the domestic sphere of foreign states to change these laws.

Perhaps, alternatives could be considered. For example, private security firms could embark teams on merchants at one side of the transit, and disembark them on the other side. Cost, of course, would be a major factor, because this would require substantial logistical support. Another option may be to embark a small craft on which the weapons could be disembarked when the merchant makes a port call. The downside of this would be that some crew would not be available for loading/unloading operations while they "babysit" the weapons.

4. The current "area patrol" defensive tactics are clearly inadequate to deal with piracy. More effective tactics are needed. However, it must also be observed that the area is simply too large and too populated to completely lock down with any defensive tactics. Our goal should not be to stop every instance of piracy, but to deter it. Deterence will be acheived by killing and capturing enough pirates that the risk is not something that can be ignored. Therefore, our defensive tactics should be oriented towards apprehending as many pirates as possible.

5. Rather than responding to distress calls as the primary means of attempting to prevent hijackings/capture pirates, I propose a more pro-active approach. Merchant traffic should be corralled into designated corridors, chosen for their distance from heavily-fished areas. This should not be terribly difficult, because they already more or less use known shipping lanes. Those lanes might just need to be moved a little. CTF-151 and other anti-piracy vessels will then actively scout those sea lanes. Using ISR assets such as P-3 Orions, UAVs, and shipborne helicopters, vessels in those lanes should be identified. Those craft will then be subject to search, prior to the merchants arriving. If any craft is found with weapons, or especially ladders and grappling hooks, the occupants would be arrested. The motherships and skiffs should be seized, and, after checking to make sure any motherships aren't themselved captured craft, burned.

This approach poses two problems: logistical and legal. Legally, a navy cannot board a ship without consent, unless that ship flies the flag of its navy or is inside the territorial waters of that navy. So, a UN Security Council resolution will be necessary to carry out this strategy. Although, frankly, I think we'd be better off carrying out the boardings anyways. The consequences for illegally boarding some fishing boats is far less than the cost of allowing hijackings to continue.

Second, there is the logistical problem of getting out the boarding teams to the site. It will not be possible to saturate the sea lanes such that all potential pirate craft can be searched. But this is no reason not to do it. CTF-151 ships should patrol in the designated lanes, casting dragnet as they go, sprinting from craft to craft and sending out RHIBs to inspect them. Additionally, helicopter carriers like the Boxer can be used to transport small boats and crews greater distances than can be done with a frigate or destroyer. US ships should prioritize sanitizing the area ahead of US-flagged merchants.

Going forward, the DoD should take note of the kinds of platforms that are useful for sanitizing these sea lanes. As remarked earlier, we may need to develop these operations for counterterrorism at some point, as well as maritime security operations, or perhaps even protecting an amphibious operation from irregular or hybrid warfare. The more boarding teams and helicopters, and the better protected our people are, the better. And all the antiship missiles in the world aren't as useful as a well-trained sniper team.

6. A legal framework for trying pirates needs to be developed. Is this something the ICC could handle? The best option would be an international tribunal of some sort. Alternatively, I don't see any reason why Congress couldn't amend our own antipiracy statute to confer universal jurisdiction to the Federal courts as against pirates (edit: it would appear that the statute as written already does confer universal jurisdiction). I'd also be in favor of nonjudicial punishment at sea of pirates, but somehow I doubt that would happen in this day an age.

What not to do
While an ultimate solution to piracy must be on land, now is not the time to carpet-bomb Eyl or anything else we're hearing from the hawks along those lines. One thing to consider is that the pirates currently hold more than 200 hostages. There would also be a lot of collateral damage, which is bad enough on its own, but in addition, laying waste to pirate strongholds would have the 3rd-order effect of strengthening the fundamentalist terrorist insurgents to the south, possibly allowing them to sieze control of Somalia. A more responsible approach would involve an all-out nation building strategy, which no one has the resources or the stomach to follow through on.

I think our best bet is to reduce piracy through deterrence, and that the pirates will then turn to other ways to eke out a living, such as fishing and trade. If that transition is gradual, then soft-power techniques might be useful in slowly civilizing the area.

RKB Nunchaku?

Didn't see this coming. I expected that, after incorporation, the Heller line would go after other gun bans. Perhaps targeting state-level handgun or "assault-weapon" bans. Or, instead of focusing on the scope, they'd focus on getting an explicit ruling requiring Strict Scrutiny, and proceed to go after laws placing an undue burden on the right.

But now it appears that the next case is going to be about your right to keep and bear Nunchucks. And the case is being appealed to SCOTUS by none other than "BigLaw" Kirkland & Ellis, LLP.

Technically, it's an incorporation case, because that was the ground it was decided on under appeal. So, if it gets to the issue of scope, it will probably be after remand and coming back up again. But it is interesting nevertheless.

Heller contains some problematic and self-defeating language. The scope of the 2A, according to Heller, is weapons "in common use." The problem is that the government can regulate/ban weapons to make them NOT in common use, and having done that, those weapons are removed from the protection of the 2A. I call this the circularity problem. And it's something that needs to be addressed before the Heller line implodes on itself before it can effect meaningful change in the law. What we need is a holding that expressly defines common use around prior laws; i.e. common use includes weapons that were in common use prior to government intervention or would be in common use but for government regulation. Without this, the government gets to define the limits of its own power, which is a constitutional absurdity.

What does this have to do with nunchucks? Everything. As I mentioned earlier, the most likely route to the Heller line seemed to be to go after something like an AWB. There is a problem with that strategy, both politically (such a ruling would be controversial and contentious) and legally (Justice Thomas inserted some language which might have been an endorsement of bans on M-16s). Enter the nunchaku. These are not "especially dangerous" military weapons, nor do they provoke controversy the way so called "assault-weapons" do. That makes them fertile ground for a relatively safe "common use" argument.

Are they in common use? Probably not. But, the facts on the appellate record suggest otherwise. The challenged law prohibiting nunchucks was actually enacted because they had become prevalent, both among gang members and martial arts enthusiasts. The do-gooders got nervous and enacted the ban. So there's that. But, in all likelihood, "common use" will be a national, not local standard ("...being necessary to the security of a free state..." speaks to national security, not local security). Nevertheless, we don't know how "common" is "common." Martial arts enthusiasts around the country could well be common enough. As a generally nonlethal weapon, nunchucks aren't "particularly dangerous" in the meaning of Heller.

Bottom line: arguing about common use for martial arts weapons is a safe, conservative approach to expanding upon the Heller precedent. If the case loses, it would not be likely to reinforce the circularity problem, but to lose on a "safe" ground (not common enough, not related to militia service---yes, Miller is still alive, and this area was referenced in Heller and was the basis for the common use scope---etc. etc.).

No word on whether Chuck Norris plans to file an amicus brief.

Curtailing Extreme Searches at the Jail

I'm sure many will disagree, but I see this as a positive development:

NEWARK, N.J. (WPIX) -- A federal judge has ruled thousands of strip searches carried out at jails in Burlington and Essex counties in New Jersey were illegal. U.S. District Court Judge Joseph H. Rodriguez says the searches violate the Fourth Amendment and are unconstitutional.

The suspects who were searched were arrested for minor offenses, such as traffic tickets. The searches have been taking place at the Burlington County Jail and Essex County Correctional Facility since 2003.

Susan Chana Lask, who represents the plaintiffs, says approximately 10,000 people were strip searched. She says she plans to file a motion for a jury trial to determine damages. Lask says a jury could award as much as $10,000 to anyone who has been strip-searched while in custody for a minor offense. The plaintiffs may be entitled to millions of dollars.

At least eight similar suits are pending against jails in Union, Middlesex and Bergen counties.

Can there be people being "checked in" who may be hiding weapons? Sure. But strip and cavity searches for routine arrests are a bit excessive (I know cavity isn't mentioned in this article, but I know it happens in IL). You can find a weapon with a pat-down. The real purpose of these searches isn't safety, but degradation. They want to make the process of being arrested as difficult as possible, which allows them to harass innocent people. Take the case of Roderick Pritchett, for example:

The evening of Roderick Pritchett's descent into hell on earth started with an ordinary shopping trip to Safeway for his mom last November 21st. The 25 year-old African/Jamaican-American frequently ran errands for her; he was the sole car owner in his family.

On the way out of his south side Chicago apartment, he went back inside and grabbed his Taurus 9 mm pistol -- which was unloaded and in its case as Chicago law requires -- and tossed it in the passenger seat. Roderick liked to stop by the shooting range to practice his marksmanship once a week to stay sharp and keep his groupings tight.

In his wallet behind his driver's license was his FOID (Firearms Owner Identification Card) which he obtained before purchasing the gun in 2000. In accordance with the strict gun control laws enacted by Mayor Daley and the city legislature, Roderick kept the gun in his apartment and never carried it on his person. This seemed strange to him; the law essentially said that defending his property was more important than defending his life from the numerous predatory south side hoods. Pritchett however always followed the law, even the ones that defy common sense.

As he drove down South Ada St. toward the range, he noticed a police car tailing him. It was early evening and Roderick was a young black man with dreadlocks driving alone. In Chicago, that's lights-and-siren time. Sure enough, Police Officer Edward Kos and Officer Rodolfo Camarillo pulled him over at 87th and Ada for a burned out taillight.

The officers approached and asked if he would mind if they searched his car. Pritchett didn't object. He knew beyond a doubt that his 9 mm was 100 percent legal. He even had a copy of the Illinois gun laws in his case. When he handed over his driver's license, he also gave them his FOID and volunteered that he had a legal firearm in the vehicle. He knew he had nothing to fear.

Unfortunately, his confidence was short-lived. The police ordered him to take a seat in the back of their black-and-white. "The officers began questioning me from the front seat of their squad car before they even let me know I was under arrest," says Pritchett. "They giggled a couple of times before sarcastically asking me why I didn't run. I was shocked speechless at their rude treatment of me."

Pritchett couldn't understand why they were hassling him. With all the crime in the city, why should they bother someone with a legal gun? He pleaded that he was only going to the range and that his gun was legal, but to no avail. Pritchett was arrested for violating 720 ILCS 5/24-1.6 Aggravated Unlawful Use of Weapons.

One of the officers left the squad car and got behind the wheel of Pritchett's station wagon to drive it to the station. Apparently, Officers Kos and Camarillo were either ignorant of the laws regarding the legal transportation of firearms, or chose to ignore them. In any case, Roderick Pritchett was on his way to 72 hours of misery that he would never forget.

Pritchett had his legal gun confiscated and was transported to the Cook County lockup and charged with a Class 4 Felony. Next, he endured the standard treatment of any run-of-the-mill accused felon within Chicago city limits -- a quite thorough strip search that left no body orifice sacred, incarceration, long days and sleepless nights in a cramped, urine-stinking cell chockablock with accused rapists and thieves, and meals of stale bread and cold soup in the company of accused child molesters and slightly more palatable muggers.

When his mother finally scraped together the $500 bond to secure his release three days later, Pritchett had one more treat awaiting him, courtesy of the Chicago PD -- a $700 fee to spring his station wagon from the impound lot. He begged the police before they impounded his car to let his girlfriend pick it up. The cops refused.

Maybe I'm a little jaded from growing up in Cook County, IL. I've been fortunate that in all my dealings with (suburban) police, they've always been professional and courteous. But I'm also white and middle class, and I haven't done anything to get myself on, say, Dick Devine's shit list (at least I don't think so). So for the most part, I do trust the police, but strip/cavity searches at arrest pushes that trust beyond its limit. I see what you're doing there, and it's not OK.

Don't Mess With EU Privacy Laws

Copyright cop wedding crashers fined by Spanish court

The next time you have a wedding, make sure your videographer isn't a secret spy for the RIAA or similar copyright group. This real-life scenario happened to a couple in Spain thanks to the efforts of the Spanish General Society of Authors and Editors (SGAE), a rights group for musicians and artists. But although the group managed to bust the reception venue for copyright violations, SGAE itself has been fined for violating the privacy of the newlyweds.

The incident originally took place back in 2005, when SGAE snuck a private detective into the wedding reception acting as a cameraman. The group had suspected the venue—La Doma restaurant near Seville, Spain—for using music without paying royalties. Predictably, this series of events have horrified privacy advocates who argue that the couple's privacy was breached. As noted by The Sunday Times, however, the issue has come to light recently because SGAE has increased its efforts to catch venues that are avoiding royalty payments, and another, similar case is about to go to court.

SGAE claims that the video was taken by guests. However, in the case of the La Doma video, a Seville court ruled that it could not be used as evidence of copyright violations because it was "a clear violation of the constitutional rights to a person's own image." Despite this, La Doma was fined €43,179 for illegally using the music. La Doma got off lightly compared to the SGAE, which was nicked for €60,101 for the privacy violations. So the SGAE's copyright enforcement cost it nearly €18,000—not including court costs.

SGAE apparently doesn't feel that it has done anything wrong, and apparently plans to continue crashing weddings in order to catch venues in the act (and maybe sneak a slice or two of cake in the process). "Using private detectives to investigate fraud is common. We will carry on doing it," SGAE director Pedro Farre told the Times. On the other hand, with cameramen being fined upwards of US$86,000, SGAE may soon find itself hard-up for volunteers to carry out its dirty deeds.

I think the article is overblowing the risk to investigators here. The privacy violation is NOT about the intrusion into the wedding party ("wedding crashers"), it's about the information that was collected about identifiable individuals--in this case, I'd guess embarrassing video of drunken guests dancing horribly ("constitutional right to a person's own image"). The message is clear: don't take video. The only information the investigator needs is the song played, and the time and place. Record more than that and you're asking for trouble.

Insulting: Jim Ryan Calls for Leaders with "Moral Compass"

Jim Ryan--the former IL AG who ran for Governor and lost to Blagojevich--needs to shut the hell up and just fade away.

In response to the corruption charges against Blago, Ryan had this to say:

"I feel bad for the people of Illinois," said Jim Ryan. "They need to rise up and say we need authentic leaders with a moral compass and we haven't had that in a while."

This, coming from a guy who tried to advance his career through entrapment schemes.

Illinois Attorney General Jim Ryan is trying to make a name for himself in law enforcement circles by conducting his own sting operation against private-party firearms sales. Ryan has been pushing his agents to violate Illinois law in order to get people to sell them "illegal" firearms over the Internet. Could this "tough-on-crime" charade be a political ploy by Ryan? After all, in Illinois primary elections are in March and 2002 is an election year.

According to the Associated Press, Ryan’s agents were able to procure some firearms: a semi-automatic pistol and two so-called assault weapons. However most of the cases could not be prosecuted either for a lack of evidence, or because Ryan violated an Illinois law prohibiting entrapment operations. The sting, which resulted in only one conviction -- Christopher Tocco of Goodrich, Michigan who pleaded guilty to unlawful use of a machine gun--has been severely criticized by the Bureau of Alcohol, Tobacco and Firearms (BATF)...

Trying to trick innocent people into breaking the law and sending them to prison so your political career might take off. Yeah, some moral compass.

Fuck off.

OI Fails at Reading Comprehension

I really dropped the ball on this one. In the beginning of November, I said the natural born citizenship issue was dead because Hawaii authorities confirmed the validity of the birth certificate.

I'm a fucking moron.

Here is the story in its entirety:

State officials say there's no doubt Barack Obama was born in Hawai'i.

Health Department Director Dr. Chiyome Fukino said today she and the registrar of vital statistics, Alvin Onaka, have personally verified that the health department holds Obama's original birth certificate.

Fukino says that no state official, including Republican Gov. Linda Lingle, ever instructed that Obama's certificate be handled differently.

She says state law bars release of a certified birth certificate to anyone who does not have a tangible interest.

Some Obama critics claim he was not born in the U.S.

Earlier today, a southwest Ohio magistrate rejected a challenge to Obama's citizenship. Judges in Seattle and Philadelphia recently dismissed similar suits.

Notice the sentence "State officials say there's no doubt Barack Obama was born in Hawai'i" is NOT attributed. The attribued statements are "Health Department Director Dr. Chiyome Fukino said today she and the registrar of vital statistics, Alvin Onaka, have personally verified that the health department holds Obama's original birth certificate," "She says state law bars release of a certified birth certificate to anyone who does not have a tangible interest," and "Fukino says that no state official, including Republican Gov. Linda Lingle, ever instructed that Obama's certificate be handled differently." None of these statements answers the question as to the contents of the birth certificate. All we have is an unattributed assertion by the reporter that the contents are in order.

The question of the eligibility of the President-Elect is still live. And it seems that we don't have an effective legal mechanism to get a look at that damn thing to end this issue once and for all. The only thing I can think of right now is that a subordinate of the then sworn-in President would have to replicate the Berg suit. Berg lost on standing of course; standing being satisfied by a subordinate being the plaintiff, the court could not dismiss the case prior to discovery, which would mean that damn elusive little piece of paper could be taken as evidence and the relevant official deposed under oath. Short of that happening, I'm out of ideas.

So yeah. I blew it by sucking at reading comprehension. I guess I just wanted it to be over and I saw what I wanted to see instead of what was actually on the page.

H/T: Conservative Thinker

US in the ICC?

Boldly said, but I remain unconvinced. ("You are not prepared!!!" Ahem.)

Maybe for no other reason other than that it was just a lousy article. Of course, on the issue of the ICC, what really matters is the risk of the body being used as a political weapon against American Soldiers. Out of 19 paragraphs, only 3 sentences are dedicated to this issue:

Initial U.S. fears that the court would be politically motivated have proved groundless. The court’s respect for the principle that it can exercise its jurisdiction only when national courts prove unwilling or unable to do so has proved unbending. Attempts to bring British forces in Iraq before the court for alleged crimes have been rejected by the prosecutor, Luis Moreno-Ocampo of Argentina.

That definitely got my attention, and it's worth considering. But this issue needs to be explored comprehensively to make an informed decision here, and two supporting facts is hardly weighty analysis. The rest of the article? Fluff about how the everyone else is doing it and whining about how unilateral Bush is. Crap we've heard 1000 times before that isn't all that convincing.

For what it's worth, Cohen has a point about us needing to shake the perception that we don't care about international law, because the development of new international rule sets is going to be vital to winning the GWOT. We need to be leading in that area, not be pariahs. But there is a lot more to international law than just the ICC. Right now, the crucial issue in this realm is the UNSC, and that should be painfully obvious to everyone. It's possible that we can make progress with the ICC, but there are serious practical issues that have to be worked out that can't simply be dismissed as "groundless."

The Cynicism Returns

It's the 2nd half of the video that's worth watching. I don't know what the deal is with that prop sword he had on his back, but the officers clearly have more of a problem with him being there than the object he was carrying at first, because after someone removes it they continue to demand that he leaves, while he insists on being able to exercise his 1st Amendment rights. And he gets arrested for it.

Whiskey Tango Foxtrot?

Positive Signs from SCOTUS on Sonar

It would appear that the Supreme Court has a bit of a pro-Navy leaning in the "Sailors v. Whales" case.

In a closely watched environmental case, justices Wednesday morning repeatedly sounded sympathetic to Pentagon officials who want to run large-scale Navy exercises off the Southern California coast. While the resulting underwater sonar storm disturbs marine mammals, it also helps prepare sailors for combat.

"I thought the whole point of the armed forces was to hurt the environment," Associate Justice Stephen Breyer said, half-jokingly. "Of course they're going to do harm."

***

Chief Justice John Roberts raised the specter of an undetected "North Korean diesel submarine to get (closer) to Pearl Harbor" if sailors couldn't train with sonar, and Associate Justice Samuel Alito asked pointedly if a judge could be considered "an expert on anti-submarine warfare." Alito added that there is "something incredibly odd" about a trial judge making a decision "contrary" to the Navy's requirements.

Even Breyer, who at times has been skeptical about other claims of executive authority, suggested that "an admiral (who) comes along with an affidavit that seems plausible" might outrank a "district judge who just says" the training should stop.

***

Associate Justice David Souter pressed Garre vigorously, insisting that the Navy may have brought the emergency circumstances on itself, but Associate Justice Anthony Kennedy added that a presidential declaration of military necessity "certainly must be given great weight."

Full story here.

The Record Obama Doesn't Want You to Know About

Slowly the facts are starting to accumulate about the period of time between Obama's college years and the beginning of his term in the Illinois Senate.

One of his efforts was apparently a campaign to undermine the constitution through paid-for law review articles, which, he hoped, would have created a result opposite of what was reached in Heller this summer (which he now claims to support).

During Obama’s tenure, the Joyce Foundation board planned and implemented a program targeting the Supreme Court. The work began five years into Obama’s directorship, when the Foundation had experience in turning its millions into anti-gun “grassroots” organizations, but none at converting cash into legal scholarship.

The plan’s objective was bold: the judicial obliteration of the Second Amendment.

Joyce’s directors found a vulnerable point. When judges cannot rely upon past decisions, they sometimes turn to law review articles. Law reviews are impartial, and famed for meticulous cite-checking. They are also produced on a shoestring. Authors of articles receive no compensation; editors are law students who work for a tiny stipend.

In 1999, midway through Obama’s tenure, the Joyce board voted to grant the Chicago-Kent Law Review $84,000, a staggering sum by law review standards. The Review promptly published an issue in which all articles attacked the individual right view of the Second Amendment.

In a breach of law review custom, Chicago-Kent let an “outsider” serve as editor; he was Carl Bogus, a faculty member of a different law school. Bogus had a unique distinction: he had been a director of Handgun Control Inc. (today’s Brady Campaign), and was on the advisory board of the Joyce-funded Violence Policy Center.

Bogus solicited only articles hostile to the individual right view of the Second Amendment, offering authors $5,000 each. But word leaked out, and Prof. Randy Barnett of Boston University volunteered to write in defense of the individual right to arms. Bogus refused to allow him to write for the review, later explaining that “sometimes a more balanced debate is best served by an unbalanced symposium.” Prof. James Lindgren, a former Chicago-Kent faculty member, remembers that when Barnett sought an explanation he “was given conflicting reasons, but the opposition of the Joyce Foundation was one that surfaced at some time.” Joyce had bought a veto power over the review’s content.

H/T: The Real Barack Obama

A Time To Choose

The last few days, I've been griping to friends and family about the possibility of a sweeping defeat--not just the White House, but the Congress to, and what that would mean. My frustration, I told them, stemmed from the feeling that our backs were against the wall. Not so for the other side. For one thing, even if socialist policies weren't implemented on the national level, they could it could still be done on the state level. That way, we could choose based on our own beliefs whether we wanted to be a part of a socialist state or a free state. Consent of the governed is, of course, one of our fundamental principles. But they want to do it on a federal level, to cram it down our throats (or more accurately, to take our labor and property from us) whether we like it or not. So they give us no such option. And if the United States doesn't flip over to European-style socialism, they still have other foreign states to choose from, if that's what they really believe in. Again, if we don't hold the line, we have no such option.

If freedom dies here, that's it. Game over.

I was poking around the intertubes and found that someone else had expressed this same view, but much more eloquently. I shouldn't have been surprised who it was.

[I]t has been said if we lose that war, and in doing so lose this way of freedom of ours, history will record with the greatest astonishment that those who had the most to lose did the least to prevent its happening. Well, I think it's time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers.

Not too long ago two friends of mine were talking to a Cuban refugee, a businessman who had escaped from Castro, and in the midst of his story one of my friends turned to the other and said, "We don't know how lucky we are." And the Cuban stopped and said, "How lucky you are? I had someplace to escape to." In that sentence he told us the entire story. If we lose freedom here, there is no place to escape to. This is the last stand on Earth.

I know we've still got a month to go and a lot can change in that time. We'll probably even see a change in the polls thanks to the debate undoing some of the media spin over the last few weeks. But I can't help the feeling that even if we win this time, we've still lost. Because as much as socialism has been discredited, we the People, collectively, no longer have the character necessary to be free men and women. If we did, then promises about what the government could "provide" to us would not win votes. If we did, then we wouldn't have passed a "bail-out" of businesses without so much as having a public discussion about why, and which, businesses had a legitimate claim to taxpayers' money.

I don't want to abandon all hope just yet, but I don't want to paint a naively optimistic view of the future, either. A permanent socialist majority is a possibility in the medium-term. And if that were to come to pass, it would mark a fundamental change in the nature of our Republic.

But it's not lost yet.

Straight, But Not Narrow (Minded)

Senator McCain has become the first GOP nominee to be interviewed by a gay publication. As someone who is dismayed about the degree of influence the religious right has on the GOP and our politics as a whole, I find this development to be quite refreshing.

The Senator does try to walk a fine line and equivocates at times, but he also articulates some very clear principles, such as the Federalist principle that family law issues should be left to the states, that people should not be discriminated against because of their sexual orientation, that sex-ed should be based on scientific data of what works, that "criminal sentences for terrible crimes should [not] be longer because of the views of the perpetrator or the identity of the victim," and that courts should not legislate from the bench.

I think the most significant aspect of the interview is that it tries to build a bridge of inclusiveness between the straight majority GOP community and the LGBT community, by emphasizing common values. In particular, I think the best part of the interview would be better directed at the social conservatives who seem to believe that gay people are morally inferior to "good Christians":

I had the humbling experience of speaking at Mark Bingham’s funeral after the attacks on Sept. 11. Mark had supported me during the 2000 campaign. Unfortunately, I barely knew him, but our country learned about him after 9-11. He was one of the heroes on 9-11 who tried to retake control of United Flight 93. His efforts along with the other brave patriots could have saved hundreds of lives. I honor and respect Mark. Memories of his sacrifice and the other victims from 9-11 motivate me everyday to make sure we keep our nation safe from the terrorists who want to attack our way of life because freedom is a threat to their message of hate.

Here’s what I said during his eulogy:

I love my country, and I take pride in serving her. But I cannot say that I love her more or as well as Mark Bingham did, or the other heroes on United Flight 93 who gave their lives to prevent our enemies from inflicting an even greater injury on our country. It has been my fate to witness great courage and sacrifice for America's sake, but none greater than the selfless sacrifice of Mark Bingham and those good men who grasped the gravity of the moment, understood the threat, and decided to fight back at the cost of their lives. (The full eulogy is available at tampabaycoalition.com/files/0921McCainPR.htm)

This is the civil rights issue of our time, and the GOP needs to get on the right side of it.

Friends of Freedom

OI will be monitoring which sites are taking down political videos like "Burning Down the House" to see where free speech is valued by the site owners and where it is not.

I want to be very clear on this point. This is in essence, not a free speech issue per se, but a property issue. Sites like YouTube are the property of their owners, who have the right to decide how their property is used.

But, the internet users of the world can and should exercise their "dollar votes"/"site-counter votes" on forums and sites where censorship is not tolerated. We just need to know where those sites are and choose to use them instead politically censored sites like YouTube.

As of the time of posting, I'm aware of two sites that have posted Burning Down the House that have not deleted it. They are LiveLeak and DailyMotion.
I'll be watching to see if that changes.

UPDATE: MetaCafe has a censored version of the MouthPeace video. They didn't approve of the language in "Money for Nothing." Well, neither to I, but I can't approve of this form of censorship either. They differ from YouTube in degree, but not in kind.

OUTRAGE: Political Blackout by YouTube (Financial Crisis Part V)

It was only a matter of time, I suppose.

For all the talk about how the internet was a bastion of free speech, the truth is that too few people own the primary public forums on the net. Which means those forums are their personal property and are good for free speech for only as long as the owners allow them to be.

The outstanding political infomercial, posted on this site and elsewhere around the internet, has been removed by YouTube. As of last night, only V1 was deleted; but V2 and V3 have since been removed as well. YouTube claims that these were deleted due to copyright claims over the soundtrack used.

Let's test that theory. Right now.

The soundtrack of the video is as follows:
Dire Straits--Money for Nothing
Tom Petty--Free Falling
Talking Heads-Burning Down the House
Bonnie Tyler--Holding Out for a Hero
AC/DC--Money Talks
Remy Zero-- Save Me
Survivor--Eye of the Tiger

The following videos, as of 1400hrs CDT 9/30/2008, were found on YouTube. All of the examples I'm posting are apparently unauthorized uses, such as DVP rips, Guitar Hero hacks, amatuer music videos, et. cetra.

Money for nothing:


Free Falling


Burning Down the House


Holding Out for a Hero


Money Talks


Save Me


Eye of the Tiger


YouTube is 0/7. Quite simply, YouTube's argument holds no water.

As for the legal side of this, this is called Fair Use.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The copyright argument is just a cover for censorship. There was a video spreading on the internet that presented facts that, if known by the average voter, could hurt Obama's chances of winning the election. So it was silenced. It's that simple.

Unless we do something very quickly about who controls the public fora in this country, our democracy will be a fig leaf as well.

PS: Here's the link to the video on another site: http://www.dailymotion.com/video/x6wxmr_burning-down-the-house-what-caused_news

Linked: The Mistress of Disaster

Meet the person behind the law enforcement/intelligence wall that impeded the 20th hijacker investigation, as well as Fannie Mae; and who will now be defending Duke U.

Hat tip: Neptunus Lex

Heller Post-Mortem Follow-Up

Apparently Justice Breyer "shares" my concern, in a manner of speaking. Although he seems more worried that it will cause new weapons NOT to be banned....

Nor is it at all clear to me how the majority decides which loaded "arms" a homeowner may keep. The majority says that that Amendment protects those weapons "typically possessed by law-abiding citizens for lawful purposes." Ante, at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes at "the most popular weapon chosen by Americans for self-defense in the home." Ante, at 57, see also ante, at 54-55. But what sense does this approach make? According to the majority's reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

BREYER, J., dissenting at 42. (emphasis added)

Heller Post-Mortem: Wagging the Dog

As I mentioned in the previous post, the individual vs. collective rights issue was a constitutional no-brainer. The only surprise there was that it went 5-4 over this point.

We also didn't get a standard to apply. I was predicting intermediate scrutiny, which in hindsight was quite stupid of me. The smart move for the Court to make was to punt the standard to the lower courts, so they get a chance to see how it goes before they pick a rule with the force of stare decisis. So my predictions get no points.

I wish I could say I was pleased with the decision, but the more I think about it, the more I'm troubled. The problem is in Justice Scalia's definition of the "arms" that are protected by the RKBA. Consider the following passages:

We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia]service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same."

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, would would bring the sorts of lawful weapons that possessed at home to militia duty. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The problem here is the limiting of the RKBA to apply to weapons "in common use" by civilians at the time. I preferred the straight up Miller approach, which implied that weapons that are "any part of the ordinary military equipment" or those the use of which would "contribute to the common defense" were within the scope of protection. The difference between these two standards is very slight, but has one crucial difference: The government doesn't get to decide which weapons "contribute to the common defense," but it absolutely can determine which weapons are "in ordinary use" by civilians. Case in point: If not for the National Firearms Act of 1934, weapons such as the M-16 and MP-5 would be in common use by civilians today. But because they are severely regulated, these weapons are not in ordinary use.... and are therefore ineligible for protection. The tail has wagged the dog. Looking prospectively, to ban weapons the government need only pick a weapon not in ordinary use (perhaps, for example, .50 caliber rifles), or regulate a weapon or class of weapons until the people stop ordinarily using it, making that new weapon or class of weapons eligible to be banned.

So, while on its face Justice Scalia and the majority have appeared to prevent the "extinction" of the Second Amendment, they have provided the government with a method to narrow the scope of the Second Amendment until it collapses into irrelevance.

Heller Predictions

A decision is expected in less than two hours, so I need to get on the record quickly. Here goes:

Judgment: Affirmed
Holding: RKBA is individual right, not collective.
Rule: Intermediate scrutiny; similar to the 1st Amendment's Time, Place, and Manner standard. The government must prove that the regulation serves an important/overriding/compelling interest not related to the suppression of gun ownership/use rights, and the regulation must be reasonably tailored to support that interest without unnecessarily harming the RKBA.
Application: DC ban does not pass scrutiny.

Of these, I think the Rule is the only outcome that's even in doubt. As long as there is an individual RKBA, the DC ban absolutely violates it. And the Supremes don't fail at reading comprehension enough not to find an individual RKBA.

For what it's worth, I hope we get strict scrutiny instead, but I don't think the Court will go there. Ordinarily SS would mean that 90%+ of the challenges against gun laws would win, which is simply not politically acceptable to the Court. And if they found a way to articulate the RKBA in such a way that many laws could pass SS, then SS itself would be harmed, and with it protections for other rights. So my bet is on intermediate scrutiny, which in all likelihood will only lead to the downfall of the most extreme gun control laws.