Bob Dylan was on the pavement, thinking about the government. And they arrested him.

Rock legend Bob Dylan was treated like a complete unknown by police in a New Jersey shore community when a resident called to report someone wandering around the neighborhood.

Dylan was in Long Branch, about a two-hour drive south of New York City, on July 23 as part of a tour with Willie Nelson and John Mellencamp that was to play at a baseball stadium in nearby Lakewood.

A 24-year-old police officer apparently was unaware of who Dylan is and asked him for identification, Long Branch business administrator Howard Woolley said Friday. “I don’t think she was familiar with his entire body of work,” Woolley said.

The incident began at 5 p.m. when a resident said a man was wandering around a low-income, predominantly minority neighborhood several blocks from the oceanfront looking at houses. The police officer drove up to Dylan, who was wearing a blue jacket, and asked him his name. According to Woolley, the following exchange ensued:

“What is your name, sir?” the officer asked.

“Bob Dylan,” Dylan said.

“OK, what are you doing here?” the officer asked.

“I’m on tour,” the singer replied.

A second officer, also in his 20s, responded to assist the first officer. He, too, apparently was unfamiliar with Dylan, Woolley said.

The officers asked Dylan for identification. The singer of such classics as “Like a Rolling Stone” and “Blowin’ in the Wind” said that he didn’t have any ID with him, that he was just walking around looking at houses to pass some time before that night’s show.

The officers asked Dylan, 68, to accompany them back to the Ocean Place Resort and Spa, where the performers were staying. Once there, tour staff vouched for Dylan.

The officers thanked him for his cooperation. “He couldn’t have been any nicer to them,” Woolley added.

Alex Knapp is less than pleased:

That’s just utterly disgusting to me. A 68 year old man out for a walk shouldn’t have to offer his ID to the police. Was he committing a crime? No. Was he suspected of committing a crime? No. Were there any indications that a crime was going to be committed? No. He was just “suspiciously” enjoying public rights-of-way.

Look, someone calls in suspicious behavior and I understand the need to check it out. But an old man walking down the street isn’t “suspicious.” And there’s no law that says that a person has to have ID with them at all times, so I fail to see what justified the need to have two police officers detain somebody until someone could vouch for their identity.

I concur completely.  If it were, say, 2 a.m., Dylan’s actions might have been a bit more suspicious.  But late afternoon in broad daylight?

The Supreme Court has been very deferential to police on these matters.  In the landmark 1968 case Terry v. Ohio, the court held that “Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.” The so-called Terry Stop doctrine has expanded over the years to the point where, arguably, Americans have little in the way of 4th Amendment rights outside their homes because policemen simply claim that they feared for their safety and judges are, not surprisingly, loathe to overrule them.

The most recent case of which I’m aware that applies here is Hiibel v. 6th Judicial Circuit of Nevada (2004), in which the Supremes upheld the arrest of a man for “refusing to identify himself to a police officer during an investigative stop involving a reported assault” in violation of Nevada’s “stop and identify” statute.   The Court did not rule on whether an ID requirement would be unreasonable; Justice Kennedy’s majority opinion did, however, note that “the Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver’s license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs.”

UPDATE: Several other accounts of the story make it clear that Dylan’s activities were indeed more suspicious than taking a walk in the broad daylight.   It was pouring rain and he had no umbrella or raincoat.  And he had wandered off of the sidewalks and was peering into the windows of a house that was for sale.  ABC’s Chris Francescani speculates that Dylan may have been looking for the house where Bruce Springsteen wrote “Born to Run;” it was only two blocks away.

Two other points.  Several commenters object to my use of the term “arrested” since Dylan apparently was not slapped in irons.  But when the police detain you and you are not free to leave, you are under arrest.  The Supreme Court says so.

That said, Tom Maguire makes a fair point:

Finally, who says that the police are only responsible for possible criminal activity?  Dylan may have been a confused old man who was having a mild stroke, or had slipped in the rain and hit his head, or was a hit-and-run victim – the non-criminal possibilities are endless.

But a brief conversation should have been able to ascertain that Dylan was not a danger to himself or others. Once that’s established, the police have done their jobs and should go.  It really doesn’t matter whether he’s really Bob Dylan at that point.

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Glenn Greenwald rebuts those who think his strident attacks on Presidents Bush and Obama for abusing their power make his blog “an ideological wind tunnel” and that he is “oblivious to the practical considerations policymakers must contend with.”

By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions.  But not all political questions were to be subject to that process.  Some were intended to be immunized from those influences.  Those were called “principles,” or “rights,” or “guarantees” — and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what Massing calls ”the practical considerations policymakers must contend with.”

We don’t have to guess what those principles are.  The Founders created documents — principally the Constitution — which had as their purpose enumerating the principles that were to be immunized from such “practical considerations.”  All one has to do in order to understand their venerated status is to understand the core principle of Constitutional guarantees: no acts of Government can conflict with these principles or violate them for any reason. And all you have to do to appreciate their absolute, unyielding essence is to read how they’re written:  The President “shall take Care that the Laws be faithfully executed.”  “[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” ”Congress shall make no law . . . abridging the freedom of speech.”  ”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”  ”No person shall be . . . deprived of life, liberty, or property, without due process of law.”  Even policies which enjoy majoritarian support and ample “practical” justification will be invalid — nullified — if they violate those guarantees.

Much more (of course) at the link.  And he’s right.

The advancement of technology have blurred some lines and simultaneously increased the potential costs to society of strict obedience to the Bill of Rights, and made it much easier for government to abuse its power.  I frequently disagree with Glenn as to precisely where the line ought be drawn on various matters but fundamentally agree with his insistence in the rule of law.  As Barry Goldwater famously put it, “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.”  Less famously, in the same speech, he observed,

Those who seek absolute power, even though they seek it to do what they regard as good, are simply demanding the right to enforce their own version of heaven on earth. And let me remind you, they are the very ones who always create the most hellish tyrannies. Absolute power does corrupt, and those who seek it must be suspect and must be opposed. Their mistaken course stems from false notions of equality, ladies and gentlemen. Equality, rightly understood, as our founding fathers understood it, leads to liberty and to the emancipation of creative differences. Wrongly understood, as it has been so tragically in our time, it leads first to conformity and then to despotism.

Many seem to think this notion only applies when their party is out of power.  Greenwald, at least, recognizes that it’s just as true when his own guy is in office.

The Clear Card program whereby pre-screened passengers are expedited through airport security is no more.  I received this email overnight:

Ensuring that this wasn’t some sort of odd email fraud scheme, I did a quick news search and, sure enough, it’s true:

Clear began in 2005 with the potential to make airport security quicker and easier for frequent travelers. For an annual fee, Clear would collect information and put something through a government security check. Once cleared, the traveler, in theory, would have privileges at Transportation Security Administration checkpoints. It was originally envisioned as a “trusted traveler” program.

But TSA never was comfortable with the notion of “trusting” any travelers, and so the security benefits of a Clear card boiled down to getting a special lane and some staff to help carry plastic tubs for you. For some people, moving to the front of a line was worth the price. But many travelers now receive that benefit with special lines for elite-level frequent fliers. And since lines are, for the most part, far less of an issue for travelers, the re-named “registered traveler” program has been slow to catch on with the flying public. Clear only was available at about 20 airports around the country, and often only at specific checkpoints at those airports. Mr. Brill had stepped down as CEO in March.

As Wired’s Ryan Singel observes, “as the TSA got better at keeping lines moving in the last few years, Clear’s benefits became less clear. Clear continued to ink deals with the nation’s largest airports and even partnering with football teams to get fans in the door faster, but evidently those strategies did not fare well in a down economy.”

What’s odd is that, while it was always clear that a private contractor was operating the program, it was always marketed as a quasi-government operation, with the clearance handled by TSA.  My wife and I joined about a year ago although, as I noted in a post last March (”Clear Card Holders Jump Airport Security Lines“), it was always “a questionable concept.”

The government requires that people give up their 4th Amendment rights against unreasonable searches in order to fly on commercial airlines on the grounds that they have no idea which of us are potentially terrorists. The government then charges a fee to allow people to prove that they’re not criminals and skip part of the line. There’s something vaguely un-American about this.

This is compounded by the fact that the government doesn’t allow people with military ID or who otherwise have actual security clearances to bypass said lines, which leads me to think that this is about collecting the $128 rather than ensuring security. That view is enhanced by the fact that no security check that could be accomplished for $128 will do anything other than demonstrate that the person in question is not a wanted felon or on a terrorist watch list. That’s a screening that all of the 9/11 hijackers would have passed.

And then, last August, Clear Card’s security was breached and had to suspend new enrollments until they got encryption installed. Whether they ever did that, I never heard.

We managed to bypass some pretty long lines a couple of times but have been much-less-frequent fliers in recent months, what with the new baby.

UPDATE: It could be worse:  Kevin Rose just paid $200 and his card is in the mail!

Scott Johnson contrasts the NYT’s silence on the David Rohde kidnapping to protect the safety of their reporter with “the Times’s illegal exposure of the NSA terrorist eavesdropping program in December 2005, as well as its exposure of the Treasury Department’s terrorist-finance tracking program in June 2006. Whereas the reporting of Rohde’s apprehension may have endangered his life, the disclosure of the NSA terrorist eavesdropping and terrorist finance tracking programs only threatened the security of the United States.”

First, the assertion that what the NYT did in publishing classified information was “illegal” is quite dubious for reasons I explained in my January 2006 post “Can NYT Be Prosecuted for Publishing Classified Info?” (itself a response to an article by Johnson).  See also my related post “Leaks, Whistleblowers, and Media Shield Laws.”

Further, while the juxtaposition had occurred to me as well, the cases are clearly different.  In the Rohde situation, there was clear and compelling reason to believe that a man’s life was in danger:

“From the early days of this ordeal, the prevailing view among David’s family, experts in kidnapping cases, officials of several governments and others we consulted was that going public could increase the danger to David and the other hostages,” said Bill Keller, the executive editor of The Times. “The kidnappers initially said as much. We decided to respect that advice, as we have in other kidnapping cases, and a number of other news organizations that learned of David’s plight have done the same. We are enormously grateful for their support.”

No such information existed with regard to the eavesdropping story.  What was put at risk was the secrecy of a government program, the legality of which is still being debated.  The “security of the United States” was put in danger only to the extent that 1) the program was effective and 2) the public knowledge that such a program existed undermined the program’s effectiveness.   Both of those are, at best, highly debatable.

While I may well have decided against publishing the story had I been the publisher of the NYT, I can certainly understand running it given the strong questions about the propriety of the program, including a seeming gross violation of the 4th Amendment rights of a wide swath of Americans.  Weighed against a highly questionable “national security” claim, that’s a pretty compelling reason to publish.   Otherwise, we’re left with a situation where the president is free to flout the law so long as he asserts a “national security” rationale and stamps a project Top Secret.

UPDATE: Marc Danziger weighs in with a much better point than Johnson’s.   Revisiting the old Mike Wallace thing about how he’d simply film a story of a American soldiers being ambushed rather than helping them because he’s not there as an American but only as a journalist, he muses,

And I can imagine how, when Rohde’s saw the uniforms of the US troops and knew that meant he was now safe, his heart must have lifted. And what’s wrong with that, of course is that he wants – as the Col. Connell suggests – to be able to claim sanctuary from his countrymen. Now I don’t know Rohde’s work, and I’m not going to claim that he’s remotely where Wallace claimed to be while sitting in the comfort of a videotaped seminar. But his institution is. And that’s a problem to me. Because it was US soldiers who gave Rohde’s sanctuary, not some mercenary force fighting in the name of the NY Times or international journalism.

The other problem is, if anything, more serious. And it is the simple fact that we are increasingly living in a society that plays by Ottoman rules; meaning that what the rules are depend – of course – on who you are. That’s not something we will survive for long, and simply put, it needs to be exposed and stamped out anywhere we see it.

So I’m glad that the NY Times and journalists could sit on an exciting story to help save one of their own. In the future, will they do this to save some random civilian, or some US soldier?

It’s an interesting question, indeed.

Apparently, the Supreme Court is leaning towards letting school administrators do just that. The case in question is a about a girl who was strip searched by school officials when she was 13 years old in eighth grade. The school officials were acting on a tip from another girl who had been caught with prescription strength ibuprofen. The girl was asked to strip to her bra and panties then pull aside her panties and shake her bra in an attempt to find the pills, and of course no pills were found.

“What this school official did,” Mr. Wolf said, referring to the male assistant principal who ordered the search, “was act on nothing more than a hunch — if that — that Savana was currently concealing ibuprofen pills underneath her underpants for others’ oral consumption.”

“I mean, there’s a certain ick factor to this,” Mr. Wolf said.

The school districts attorney argued that such searches should be allowed for even the most benign over the counter drugs. Justice Souter had a flash of sanity, only a flash though, and noted that a student having an aspirin is unlikely to pose a major health threat.

“At some point it gets silly,” Justice David H. Souter said. “Having an aspirin tablet does not present a health and safety risk.”

Justice Scalia…well lets see what he had to say,

Justice Antonin Scalia challenged him on the first point.

“You search in the student’s pack, you search the student’s outer garments, and you have a reasonable suspicion that the student has drugs,” he said. “Don’t you have, after conducting all these other searches, a reasonable suspicion that she has drugs in her underpants?”

“You’ve searched everywhere else,” Justice Scalia said. “By God, the drugs must be in her underpants.”

Yes, and after that, body cavity searches, right? I think most people would not find it unreasonable that if I found out my son underwent a body cavity search they wouldn’t have to worry about me suing the school official responsible. They’d have to worry about finding all the pieces of his body. And no, by God, the drugs must not be in her underpants, the other possible answer is that there are no drugs and that the snitch might have been settling a grudge.

Mr. Wolf, Ms. Redding’s lawyer, injected another new term into the court’s lexicon. He said a search may be appropriate if the school has evidence that a student makes a habit of “crotching” drugs.

Justice Souter may have summarized the mood of the court near the end of the argument in the case, Safford Unified School District v. Redding, No. 08-479. Several justices appeared troubled by the search, but also seemed loath to second-guess school officials confronted with a variety of dangerous substances.

“My thought process,” Justice Souter said, “is I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.”

As Radley Balko asks, can’t we at least have some empirical evidence that kids “crotch their drug stash” that has lead to the death of other students? Is actual evidence too much to ask for, even at the Supreme Court? The strip search was based on a snitch’s statements, something that should be taken with a shovel of salt. When you are down to the underwear and you haven’t found drugs on a student with no history of drug abuse, good grades, good attendance, and no other indicators of being a problem student maybe it is at that point that you should call the child’s parents and involve them.

Update: Missed this part,

Mr. Wright did draw the line at searches of students’ body cavities, but only on the practical ground that school officials are not trained to conduct such searches. Mr. Wright said there was no legal obstacle to such a search.

So if the Supreme Court does go along with the school, and officials do get proper training by enrolling your child in public school you are giving your consent for a school official to insert a gloved hand into your child’s anus. Very nice.

Photo by Flickr user drp, used under Creative Commons license.

Andrew Sullivan is soliciting right-of-center comments on a report by Eric Lichtblau and James Risen that has mostly attracted left-of-center commenters thus far. Here’s the lede:

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

As with most of the news on this story over the years, it’s difficult to comment because it’s rather mysterious what precisely has been going on.  It’s apparently something more intrusive than electronic data mining and less intrusive than ordinary wiretapping. Here’s how the present story describes it:

After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.

Unlike torture or detention without trial, I’m not reflexively outraged at the prospect of intelligence agencies sifting through the communications with overseas parties for clues on terrorist activity.  I’m troubled by skirting existing law to do it, to be sure, but am willing to grant a lot of license on national security matters when no obvious harm results.

Again, though, this may simply be because I don’t understand what is being done here.  Given that there are 300 million-odd Americans and maybe 100,000 agents available for investigating terrorism, they’re not sitting around listening to everyone’s phone calls and reading all our emails.  I’m given to believe that they’re doing something more than electronic sifting of data looking for keyword patterns (data mining).

In the case of this particular report, what precisely has been “overcollected”?  And how is it possible to overcollect unintentionally?

Now this is troubling:

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said. The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The problem with targeting specific individuals is that this obviously triggers 4th Amendment rights.  Now, granted, if the motive for investigating is gathering counterterrorism intelligence rather than putting together a legal case, most of the harm is mitigated.  After all, the remedy for violated 4th Amendment rights is the Exclusionary Rule — disallowing information so obtained and any information thereby tainted (the Fruit of the Poisonous Tree Doctrine) from use in court against the aggrieved person.  But it’s still a violation of civil rights.   And the targeting of a Member of Congress by the executive branch without judicial oversight is a fundamental breach of separation of powers.

All that said, I do agree with Steven Taylor — who has been much more exorcised about this issue over the years than I have — that this demonstrates why we need oversight on government power.  That is, even if perfectly well intentioned, things go wrong.  And this: “If people want something to worry about in terms of the expansion of governmental power, the issue isn’t bank bailouts or loans to GM, as those will pass, it is stuff like this which has the tendency to grow.” Not that the former precedents don’t create bad tendencies, too, mind you.

Photo by Flickr user Scruffy Dan and Breanne, used under Creative Commons license.

The Supreme Court agreed yesterday to hear the case of Savana Redding, who, as “a 13-year-old honor student who was subjected to a strip search by school officials in Arizona looking for prescription-strength ibuprofen.” The gist of the dispute, as described by Adam Liptak for NYT:

The strip-search case was brought by the mother of Savana Redding, who in 2003 was an eighth-grade student at a public middle school in Safford, Ariz. Another student, found with ibuprofen pills in violation of a strict school policy, said Savana had given them to her.

School officials searched Savana’s belongings, made her strip to her bra and underwear, and ordered her, in the words of an appeals court, “to pull her bra out to the side and shake it” and “pull out her underwear at the crotch and shake it.” No pills were found. The pills that prompted the search had the potency of two over-the-counter Advil capsules.

A trial judge dismissed the parent’s case against the school officials, ruling that they were immune from suit. After a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed that decision, the full appeals court agreed to a rehearing. By 6 to 5, a larger panel of the court reversed the decision, saying the suit could go forward against the assistant principal who had ordered the search. “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude,” Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. “More than that: it is a violation of any known principle of human dignity.”

Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” Savana had endured. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.” “I would find this search constitutional,” he wrote, “and would certainly forgive the Safford officials’ mistake as reasonable.” In an aside, he discounted Savana’s school record. “Unless we think that the Fourth Amendment gives greater protection to good test takers,” he added, “there is only so much weight we can give to Redding’s honor-student status.”

Here’s a question: What gives “school officials” any right to conduct a strip search of a student, regardless of her grades? Her locker? Sure. But her person? I’m thinking that’s a job for police officers with a valid search warrant.  Furthermore, I’d say suspicion of possession of analgesics is below the threshold required for justifying a strip search.

T. Christopher Kelly agrees but fears a sideways outcome:

nfortunately, the Supreme Court might decide that its precedent does not “clearly establish” that strip searches of students are unreasonable under the circumstances that existed in Savana’s case, and that the school officials are therefore entitled to qualified immunity from suit. If it takes that route, it might even duck the central question: whether Savana’s right to be free from an unreasonable search was violated. That’s one of the problems of the Supreme Court’s invention of qualified immunity: it inhibits the natural development of the law.

Qualified immunity is supposed to shield public officials from lawsuits when the law is ambiguous so that they can discharge their responsibilities fearlessly (even if stupidly, as in Savana’s case). No reasonable public official should think the Constitution permits a strip search of a student for an item that isn’t dangerous based on such flimsy information.

I’m afraid that overestimates the intelligence of public officials.

As a further aside:  The fact that it’s taken six years of persistence on the part of Savana’s parents — at the cost of who knows how much time and money — to get this far is simply stunning.  If justice delayed is justice denied, then dragging a case on so long that an eighth grader is halfway through college surely qualifies.

Story via Memeorandum. Photo by Flickr user Muffet, used under Creative Commons license.

A while back, I asked for reader suggestions on posts but, alas, have published no posts in response to said suggestions.  Most of the suggestions were for posts and post series requiring research.  Three of my colleagues have volunteered to write something in response to suggested topics and I have underway a post on General and Flag Officers, which was to be the inauguaral post in my “Know Your Military” series, only to accidentally overwrite it with a version about 90 minutes of work earlier in the process and haven’t regenerated a desire to do that work again.

Kevin Drum’s statement that the federal government’s ability to obtain your location via GPS “cell phone tracking should indeed require a warrant hardly seems disputable” has given me a ready opportunity, though, to inaugurate “A recurring series that expounds on each paragraph in the US Constitution — its origins, intent, current interpretation, significance today” as suggested by Charles Austin.   I don’t know that we’ll ever get to every paragraph but we’ll hit the highlights as opportunities present themselves.

On its face, the 4th Amendment couldn’t be much simpler:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As with most of the rest of the Constitution, though, it’s become barely recognizable after two hundred plus years of litigation.  It’s safe to say that “the greater number of searches, as well as the vast number of arrests, take place without warrants.”  Indeed, “searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.”

A whole body of case law has carved out judge-made exceptions to the warrant requirement, under the rationale that the 4th Amendment only protects against “unreasonable” searches and seizes.  Seemingly, damned near anything constitutes a reason.   FindLaw has a superb discussion of the relevant case law and judicial reasoning. To oversimplify greatly, however, suffice it to say that police can pat you down under the pretense of looking for a weapon if you’re anywhere but inside your home; can search your person and the room you’re in if you’re being placed under arrest; you have essentially no “expectation of privacy” in your vehicle once police have stopped you for any “valid” reason, including a completely random roadblock where they have no reason to think you’ve done anything wrong; and you’ve got even less protection in a boat than in a car.

Similarly, the “open fields” doctrine gives no protection against “police searches in such areas as pastures, wooded areas, open water, and vacant lots” and materials in “plain view” of police may also be seized without warrant.  Very limited protections exist, furthermore, in public schools, government offices, or (obviously) prisons.

Kevin, though, is talking about electronic surveillance rather than searches.  FindLaw has an excellent discussion of the case history there, too, beginning with the 1928 Olmstead Case which held that “wiretapping was not within the confines of the Fourth Amendment . . . so long as there was no physical trespass on premises owned or controlled by a defendant.” That rationale would ultimately be overturned in 1967.   Still, the Court has given wide berth to police so long as they weren’t physically entering a person’s property.

So far as I’m aware, there’s no case law on the tracking of a person’s location via a GPS-enabled mobile phone.  Given the above, however, it’s hard to imagine that the Court would hold a warrant was required.  Police don’t have to enter your home to get such information (it’s presumably triangulated based on cell tower locations) and the information conveyed (your approximate location) is something to which your reasonable expectation of privacy is quite low.

Indeed, while I’m much more of a 4th Amendment purist than most, finding much of the above history to be a classic case of “judicial activism” not merely being something that liberals do, I’m hard pressed to get too excited by the feds keeping tabs on the general whereabouts of “persons of interest” without judicial supervision.

Image credit:  BillofRights.com

The Senate easily invoked cloture yesterday, ending a threatened filibuster of a major overhaul of the Foreign Intelligence Surveillance Act of 1978. The revised bill is expected to pass today.

This may be the most important bill we pass this year,” said Senate Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.), an architect of the bill crafted over four months of negotiations between congressional leaders and the White House.

The bill would require that the secret FISA court approve procedures for intercepting foreign nationals’ e-mails and telephone calls. Spying on U.S. citizens, including those overseas, would require individual warrants from the same court.

It also would establish the FISA law, and the secret court it created, as the final legal authority on government spying. House Speaker Nancy Pelosi (D-Calif.) and Sen. Barack Obama (D-Ill.), the party’s presumptive presidential nominee, have cited the exclusivity provision as the main reason they supported the bill. They said it is a rejection of President Bush’s stance that his wartime powers gave him authority to approve the defunct warrantless wiretapping program.

So far, so good. The sticking point, though, is that the bill would give retroactive immunity from civil suits to telecommunications companies that complied with Bush Administration requests to assist in electronic surveillance absent FISA warrants. As FDL’s Ian Welsh notes, “Obama and McCain were both absent, as was Clinton.” The only others not voting were Robert Byrd and Teddy Kennedy, both of whom are recovering from serious medical conditions. One presumes the others were off campaigning or fundraising — and wanting to escape and on the record vote.

This didn’t prevent Obama and Clinton from being criticized. Carrie Budoff Brown, reporting for The Politico:

Disappointed over his position on the Foreign Intelligence Surveillance Act, the online activists feel jilted and betrayed and have taken to questioning his progressive credentials. One prominent blogger, Atrios, has even given him the moniker “Wanker of the Day.”

“He broke faith,” said Matt Stoller, a political consultant and blogger at OpenLeft.com. “Obama pledged to filibuster, and he is part of that old politics, in this case, that he said he wasn’t. It will spur us to challenge him.”

The FISA debate marks the presumptive Democratic nominee’s first serious break from the liberal Netroots in the general election. He is still their candidate, but the FISA issue has reignited skepticism among major bloggers, who had largely pushed aside doubts about Obama when Edwards, their favored candidate, ended his bid in February.

Welsh says “This is a sad day, especially for those of us who believed Obama when he said he would support a filibuster against retroactive immunity.” More importantly, he correctly notes that yesterday’s was “the real vote” and that voting against the final bill, while it might fool “the rubes,” is meaningless.

Greg Sargent presents Obama’s explanation for why he reneged on his promise to “support a filibuster of an earlier version of the bill,” namely that, “My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people.” That’s a statement that will play well with most Americans, I think, even if it upsets the netroots.

And, indeed, Obama has correctly gauged that the latter is of peripheral consequence.

Still, the disillusionment goes only so far. The liberal blogosphere’s most recognizable name, Markos Moulitsas Zuniga, founder of Daily Kos, said Monday on MSNBC’s “Countdown With Keith Olbermann”: “Let’s be honest, it is either Obama or John McCain. So we really don’t have much of a choice.” At stake for Obama in the FISA vote is the intensity of support for Obama, Moulitsas said.

“I don’t want to hear him talk about leadership. I don’t want to hear him talk about defending the Constitution. I want to see him do it,” he said. “If he does, it will increase the intensity and level of support he gets from base Democrats. If he doesn’t, we may worry he is just another one of these spineless Democrats who are more afraid of controversy in doing the right thing than they are in actually doing the right thing.”

The intensity of outrage over telecom immunity continues to puzzle me. The core issue is finding a balance between 4th Amendment freedoms and the collection of intelligence necessary to prevent terrorist attacks. Ultimately, that means finding a way to get swift but real judicial oversight, preferably by people with a serious understanding of intelligence collection, to guard against executive zeal. The ability to retroactively sue phone companies, who complied with what they either thought were legitimate requests from the government to help go after the bad guys or simply feared alienating their regulatory overlords, has always struck me as a tertiary issue.

Those who wish to fly without ID cards have but a few more days.

Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures.

Now, I’m as anti-TSA as the next guy and still maintain that being subject to search by federal agents absent reasonable suspicion, much less probable cause, is a violation of my 4th Amendment rights. But having to show identification so that it can be ascertained that I share a name with the guy on the boarding pass? No problem.

Daniel Solove begs to differ.

I’m one who routinely presents my ID to the TSA officials at the airport. I think that the ID requirement is stupid, but I just want to get to my plane and not be hassled. But others, for reasons of conscience or protest, do not want to present their ID at the airport. This new TSA rule strikes me as problematic from a First Amendment standpoint, since it seems to be designed to target those who don’t present ID for expressive reasons. As such, this new TSA requirement might be a form of viewpoint discrimination.

Although the First Amendment doesn’t restrict the TSA from requiring IDs in order to board an airplane, it does restrict using the ID requirement to penalize people who engage in expressive conduct. Because the TSA requirement seems to be targeted to this kind of expressive conduct (hence the exception for lost or stolen IDs), it may run afoul of the First Amendment.

I get that there’s such a thing as symbolic speech. You know, F- the draft and other such noble sentiments. But what exactly is the idea conveyed by not showing one’s drivers’ license? I got my license suspended? I’m under 16? I’m afraid the camera will steal my soul? F- you? Wouldn’t it be more expressive to say, “It really pisses me off that I have to show you ID to fly” to the agent while complying with the request?

I do, however, find it troubling that the regulation has a “is nice to the authorities” exemption. The freedom to be crabby with annoying government officials strikes me as much more fundamental to free expression than not showing an ID card.

Today’s WaPo has a short feature on Clear Cards, whereby travelers get to bypass TSA security lines at select airports for a small fee.

Fast-pass security lanes officially opened at Reagan National and Dulles airports Wednesday for travelers with special clearance.

Heres how it works: Fliers undergo a Transportation Security Administration background check and have personal data, plus iris and fingerprint scans, put on a card. Although the fliers still have to remove their shoes and get carry-ons X-rayed, at certain airports the cards let them skip the lines that everyone else endures.

As of Wednesday, 3,500 Washington area travelers had signed up for a Clear card, which costs $128 a year.

My wife and I flew out of Reagan Thursday afternoon and noticed the new lines which, for now at least, are noticeably shorter. Given that we fly quite often and can afford the $128 we’ll almost certainly get them, although enough people in the DC area fit that description that I wouldn’t be surprised if the standard lines don’t soon become shorter.

It is, however, a questionable concept. The government requires that people give up their 4th Amendment rights against unreasonable searches in order to fly on commercial airlines on the grounds that they have no idea which of us are potentially terrorists. The government then charges a fee to allow people to prove that they’re not criminals and skip part of the line. There’s something vaguely un-American about this.

This is compounded by the fact that the government doesn’t allow people with military ID or who otherwise have actual security clearances to bypass said lines, which leads me to think that this is about collecting the $128 rather than ensuring security. That view is enhanced by the fact that no security check that could be accomplished for $128 will do anything other than demonstrate that the person in question is not a wanted felon or on a terrorist watch list. That’s a screening that all of the 9/11 hijackers would have passed.

Mike Huckabee wants to overturn the 14th Amendment, the Washington Times reports.

Mike Huckabee wants to amend the Constitution to prevent children born in the U.S. to illegal aliens from automatically becoming American citizens, according to his top immigration surrogate — a radical step no other major presidential candidate has embraced.

Mr. Huckabee, who won last week’s Republican Iowa caucuses, promised Minuteman Project founder James Gilchrist that he would force a test case to the Supreme Court to challenge birthright citizenship, and would push Congress to pass a 28th Amendment to the Constitution to remove any doubt.

That Huckabee has the vigilante Gilchrist serving as an advisor, let alone a spokesman, is rather troubling.

In principle, though, I’m not opposed to this from a public policy standpoint. There’s no good reason to grant automatic citizenship to children born to illegal aliens. “Birthright citizenship” was instituted to grant full legal rights to the freed slaves, not reward law breaking. As a practical matter, though, such an amendment would have no chance of achieving the two-thirds support in both Houses of Congress and majorities in three-quarters of the state legislatures required.

As Mark Levin observes,

if anyone is counting, this makes four constitutional amendments Huckabee claims to be supporting:

1. the Fair Tax requires a constitutional amendment to eliminate the Sixteenth Amendment;
2. a Human Life amendment;
3. an amendment to define marriage;
and now,
4. an amendment to end birthright citizenship.

That would certainly be a record pace.

Story via Memeorandum. Photo via AP/Boston Globe

UPDATE: Huckabee is flatly denying this report. PoliPundit has the text of the statement:

I do not support an amendment to the constitution that would prevent children born in the U.S. to illegal aliens from automatically becoming American citizens. I have no intention of supporting a constitutional amendment to deny birthright citizenship.

One wonders what Gilchrist’s motivation was in making the announcement to the Times. Was he intentionally sabotaging Huckabee with anti-immigration voters? Trying to back him into a corner? Or did Huckabee give him a different impression in private?

Over at The Glittering Eye, Dave Schuler extends the argument he’s made in the comments of my tongue-in-cheek post on the fact that the media continues to ignore the ethnic-religious component of the rioting in France.

He argues that the problem goes beyond religion and is ultimately about assimilation and “giving the descendants of immigrants a stake in the country that’s the only one they’ve ever known.”

He’s right. Indeed, I allude to that even in my glib observation that, “Clearly, not much has been done over the past two years, since the last set of youth riots, to integrate the youths into French society.”

How to go about that, though, is the question. The politics of race and ethnicity is especially difficult in an era where we’re supposed to simultaneously pretend that cultural differences are immaterial and yet revel in the wonderful diversity that different cultures add.

Despite a history that includes slavery, racial apartheid (Jim Crow), and ethnic cleansing (the Indian wars), the United States has done relatively well in assimilating those from alien cultures into our own. Since the passage of the 14th Amendment, all who are born on American soil are automatically endowed with all the rights of citizenship and people are considered “Americans” by their fellows regardless of racial, religious, or ethnic background so long as they speak the language and obey the rules. That’s not the case in much of Western Europe where even a third generation German-born Turk is still a Turk, not a German.

Still, removing legal barriers to citizenship clearly isn’t enough. While not on the scale of the Muslim riots that are now in their second go-round in Paris or those that happened across Europe a couple years ago owing to some cartoons in a Danish paper, we’ve had our share of race riots in the United States even in the post-Civil Rights Act era. The riots following the Rodney King verdict in Los Angeles are the most noteworthy, but there have been several lesser ones involving outraged blacks and Hispanics over perceived police brutality; those in Miami (1980), Crown Heights (1991), St. Petersburg (1996), and Benton Harbor, Michigan (2003) are the most notable.

To be sure, these are rare events. That those old enough to have lived through them remember them vividly is a testament to how unusual they are. Still, they happen.

The idea that we should deal with the “root causes” is all well and good but it’s not clear exactly how one goes about doing that. Nor should the fact that there are legitimate grievances be considered justification for mayhem.

Photo credit: The Age/Reuters

A championship womens’ bridge team went Dixie Chick and are now facing possible sanctions.

In the genteel world of bridge, disputes are usually handled quietly and rarely involve issues of national policy. But in a fight reminiscent of the brouhaha over an anti-Bush statement by Natalie Maines of the Dixie Chicks in 2003, a team of women who represented the United States at the world bridge championships in Shanghai last month is facing sanctions, including a yearlong ban from competition, for a spur-of-the-moment protest.

At issue is a crudely lettered sign, scribbled on the back of a menu, that was held up at an awards dinner and read, “We did not vote for Bush.”

By e-mail, angry bridge players have accused the women of “treason” and “sedition.”

“This isn’t a free-speech issue,” said Jan Martel, president of the United States Bridge Federation, the nonprofit group that selects teams for international tournaments. “There isn’t any question that private organizations can control the speech of people who represent them.”

Not so, said Danny Kleinman, a professional bridge player, teacher and columnist. “If the U.S.B.F. wants to impose conditions of membership that involve curtailment of free speech, then it cannot claim to represent our country in international competition,” he said by e-mail.

Ms. Martel said the action by the team, which had won the Venice Cup, the women’s title, at the Shanghai event, could cost the federation corporate sponsors.

The players have been stunned by the reaction to what they saw as a spontaneous gesture, “a moment of levity,” said Gail Greenberg, the team’s nonplaying captain and winner of 11 world championships. “What we were trying to say, not to Americans but to our friends from other countries, was that we understand that they are questioning and critical of what our country is doing these days, and we want you to know that we, too, are critical,” Ms. Greenberg said, stressing that she was speaking for herself and not her six teammates.

In all honesty, I was unaware there was an international bridge championship, so this at least provides the group with some publicity.

As to the possible sanctions, I’m rather torn. On its face, the protest was innocuous enough and Americans should not face threats to their livelihood over their political views. Then again, highjacking an event like this for personal political expression is unseemly and may well violate the rules of the association. (So far as I can tell from a quick check, though, the Women’s Conditions of Contest only discuss the point system for playing; there are no personal conduct rules aside from penalties for tardiness.)

Via Mark Kleiman, who sees this as cut-and-dried: “If you exercise your right to free speech, you’re unfit to represent the United States in international competition. Why is that so hard to understand?”

UPDATE: Jon Swift playfully adds,

Some people have the wrong idea about what the Bill of Rights really means. In America you have freedom of expression as long as a private organization doesn’t own your expression. Peaceful protests are fine as long as they don’t embarrass organizations that depend on corporate sponsorship and take place on American soil behind police barricades where they can be videotaped for future use in any trials that might arise.

Of course, the First Amendment only prohibits Congress (and via incorporation via the 14th Amendment, the several States) from abridging speech. In the same way that “freedom of the press is reserved to those who own one,” people face practical limitations on what they can say and when they can say it because of economic relationships.

The Dixie Chicks are free to bash President Bush but country radio stations are free to stop playing their records and country music fans are free to stop buying their albums and paying to attend their concerts. Isaiah Washington and Michael Richards are free to say what they want about gays and African Americans but they’re not immune from the economic consequences that follow.

In many ways, that’s lamentable. Unpopular and controversial ideas deserve the highest level of protection and tyranny of the majority or the tyranny of the almighty dollar is, in many ways, no better than tyranny of the king. Only the latter is prohibited, though.

For one thing, the state has a unique power over its citizens. For another, one can’t limit the sanctioning power of the community or its business owners without stripping them of their right of free association.

Also, I neglected to mention in the original post the outrageousness of dubbing innocuous statements about the sitting president “treason.” Frankly, that sort of thing is now so commonplace that I’m inured to it unless it comes from particularly noteworthy sources.

In an incredibly hyperbolic piece with the over-the-top headline “The Coup at Home,” NYT columnist Frank Rich draws an equivalence between the coup in Pakistan and the incremental decline of freedom in the United States in the name of counter-terrorism.

The gist of the piece:

The Pakistan mess, as The New York Times editorial page aptly named it, is not just another blot on our image abroad and another instance of our mismanagement of the war on Al Qaeda and the Taliban. It also casts a harsh light on the mess we have at home in America, a stain that will not be so easily eradicated.

In the six years of compromising our principles since 9/11, our democracy has so steadily been defined down that it now can resemble the supposedly aspiring democracies we’ve propped up in places like Islamabad. Time has taken its toll. We’ve become inured to democracy-lite. That’s why a Mukasey can be elevated to power with bipartisan support and we barely shrug.

This is a signal difference from the Vietnam era, and not necessarily for the better. During that unpopular war, disaffected Americans took to the streets and sometimes broke laws in an angry assault on American governmental institutions. The Bush years have brought an even more effective assault on those institutions from within. While the public has not erupted in riots, the executive branch has subverted the rule of law in often secretive increments. The results amount to a quiet coup, ultimately more insidious than a blatant putsch like General Musharraf’s.

More Machiavellian still, Mr. Bush has constantly told the world he’s championing democracy even as he strangles it. Mr. Bush repeated the word “freedom” 27 times in roughly 20 minutes at his 2005 inauguration, and even presided over a “Celebration of Freedom” concert on the Ellipse hosted by Ryan Seacrest. It was an Orwellian exercise in branding, nothing more. The sole point was to give cover to our habitual practice of cozying up to despots (especially those who control the oil spigots) and to our own government’s embrace of warrantless wiretapping and torture, among other policies that invert our values.

Even if Mr. Bush had the guts to condemn General Musharraf, there is no longer any moral high ground left for him to stand on. Quite the contrary. Rather than set a democratic example, our president has instead served as a model of unconstitutional behavior, eagerly emulated by his Pakistani acolyte.

Now, I’m not going to argue that “we are at a time of war and thus, special circumstances dictate what happens.” Indeed, I broadly agree with Rich that we’ve sacrificed far too much freedom for far too little gain. I was against the creation of the Department of Homeland Security and find things that few others seem to object to, like government agents forcing me to undergo searches despite not having even a whiff of reasonable suspicion, clearly in violation of the 4th Amendment, in order to board a private airplane absolutely outrageous. I’ve consistently opposed torture, rendition, the declaration of citizens as enemy combatants, and all manner of steps taken in this war.

I’ve even argued that Musharref’s justifications for his actions parallel our own.

So, as far as Musharraf is concerned, all of these actions are part of the “antiterrorism efforts.” That’s why operating under the rule of law is essential for a free society: An unchecked executive can declare anything he sees fit cause for extreme measures.

But, please, let’s not pretend that our Republic is anything like Pakistan. President Bush has not canceled any elections. Indeed, he stood for and only narrowly won re-election three years ago and there’s simply no question that he’d have stepped aside had John Kerry picked up another few thousand votes in Ohio. His party lost control of both Houses of Congress a year ago and he forthrightly acknowledged the whoopin’ he took. When the Supreme Court strikes down his overreaches, he bows to their authority. Number of opposition leaders imprisoned: Zero.

As Dave Schuler aptly noted in a recent exchange, “a difference in degree is, indeed, a difference in kind.”

Bush is pushing the envelope on presidential power in a way that it hasn’t been done in quite some time (the last major war the country was involved in) but he has neither the aspiration nor the ability to become a dictator. America is much less free than I’d prefer, but we’re clearly a “free country” by comparison with virtually every other society in the history of the planet.

Similarly, the mess at Abu Ghraib and the questionable practices at Guantanimo aren’t in the same league as the outrages perpetrated by our enemies.

All that said, though, bad action on our part can be exploited by our adversaries. Cries of, “This isn’t any different than Abu Ghraib” or “But Bush does it too” may be intellectually dishonest but they’re quite effective for propaganda purposes.

Rich continues:

To believe that this corruption will simply evaporate when the Bush presidency is done is to underestimate the permanent erosion inflicted over the past six years. What was once shocking and unacceptable in America has now been internalized as the new normal.

This is most apparent in the Republican presidential race, where most of the candidates seem to be running for dictator and make no apologies for it. They’re falling over each other to expand Gitmo, see who can promise the most torture and abridge the largest number of constitutional rights. The front-runner, Rudy Giuliani, boasts a proven record in extralegal executive power grabs, Musharraf-style: After 9/11 he tried to mount a coup, floating the idea that he stay on as mayor in defiance of New York’s term-limits law.

Please. Trying to change the law so that he could run in another free and open election isn’t quite the same as canceling elections and rounding up opponents. Moreover, he didn’t actually do it, right? More importantly, had he tried, we have multiple institutions in place that would have prevented it.

It’s true that wartime presidents push for more power and often get it. Similarly, wartime publics seem willing to give up a substantial measure of freedom. Bush didn’t invent this and the current era is hardly the first instance of this. The Founding generation gave us the Alien and Sedition Acts. Abraham Lincoln blatantly abused his power in ways inconceivable now and he’s on Mount Rushmore. Ditto Teddy Roosevelt. Woodrow Wilson and Franklin Roosevelt, too, minus the Rushmore part. Generally speaking, a counter-reaction followed the wars, but not always.

Regardless, we have elections a year from now to decide who will sit in the Oval Office, fill all 435 seats in the House, and a third of the United States Senate. Two years later, we’ll have yet another congressional election and two years after that, another presidential and congressional cycle, and so on. If the public demands more freedom, they’ll get it. If not, they won’t deserve it.

That, ultimately, is the bottom line. It’s not our leaders who are the problem but rather the led.