Supreme Court Overrules Death Penalty for Minors

High Court Ends Death Penalty for Youths (AP)

The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws out the death sentences of about 70 juvenile murderers and bars states from seeking to execute minors for future crimes. The executions, the court said, were unconstitutionally cruel.

It was the second major defeat at the high court in three years for supporters of the death penalty. Justices in 2002 banned the execution of the mentally retarded, also citing the Constitution’s Eighth Amendment ban on cruel and unusual punishments. The court had already outlawed executions for those who were 15 and younger when they committed their crimes. Tuesday’s ruling prevents states from making 16- and 17-year-olds eligible for execution.

Justice Anthony Kennedy, writing for the majority, noted that most states don’t allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice. “Our society views juveniles … as categorically less culpable than the average criminal,” Kennedy wrote.


Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, as expected, voted to uphold the executions. They were joined by Justice Sandra Day O’Connor.

Currently, 19 states allow executions for people under age 18: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Texas and Virginia.

In a dissent, Scalia decried the decision, arguing that there has been no clear trend of declining juvenile executions to justify a growing consensus against the practice. “The court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: ‘In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty,’ he wrote in a 24-page dissent. “The court thus proclaims itself sole arbiter of our nation’s moral standards,” Scalia wrote.

Scalia’s right. I’m not a big fan of capital punishment for minors but find it incomprehensible that it could suddenly be unconstitutional. The 8th Amendment was ratified in 1791. The fact that 19 states still allowed youth executions until this morning belies the argument that the citizenry considers the practice cruel.

Update (1348): Steve Bainbridge and Steven Taylor have more analysis.

For those on the Left critical of my strict constructionist interpretation, see my post on yesterday’s ruling in the Padilla case. There are some strong advantages to having judges interpret the Constitution as written.

Update (3-2): Matt Yglesias agrees, observing,

The “evolving consensus” business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don’t do something as evidence that a minority of states should be forbidden from doing it.

Quite right.

Tony Blankley adds, “As a former prosecutor, I am convinced that from time to time juries find before them 16- or 17-year-old defendants who understand full well the vicious nature of their murders, and deserve — after receiving the full panoply of due process — to be fried, gassed, hanged, shot, injected or otherwise sent promptly to Hell.”

James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. bryan says:

    It was the second major defeat at the high court in three years for supporters of the death penalty.

    I don’t know that I’d call either of these defeats “major defeats” for death penalty supporters. It curtails a very small proportion of potential cases, and the death penalty is still legal.

    Rather, this sounds like poor writing trying to drum up conflict.

  2. Michael says:

    Just once, I’d like to see a conservative admit that, just because the citizenry likes something, it doesn’t make it right (or constitutional.)

    Did it ever occur to you that one of the reasons we have courts is to provide a check to the will of the majority?

  3. James Joyner says:


    Such is the way to tyranny.

    We have the Constitution to check the will of the majority. We’ve declared certain things off limits to a simple majority, such as the right to abridge freedom of press, speech, assembly, arms ownership, illegal searches, etc. The Constitution has not been amended to preclude execution of minors. Other things, like amending the Constitution, requires a supermajority.

    The 8th Amendment protects against cruel and unusual punishment. Executing minors so sentenced by juries was constitutional from the day the Constitution was ratified in 1789 until this morning.

    This isn’t the Court attempting to enforce the Constitutionally protected rights of a minority from a majority. It’s the preference of 5 justices being substituted for that of the duly elected governments of 19 states.

  4. Anderson says:

    I don’t think the present case is particularly admirable jurisprudence, but this hard-core “1791 or bust” stuff is hard to take.

    Scalia, winningly, points out that in 1791, the law allowed a *7-year-old* to be executed for murder. (Gotta admire his rhetorical judgment–not.) So much for 1791.

    That said, I can’t really see where an 18-year-old is executable and a 17-year-old isn’t; I would’ve gone with O’Connoresque fuzziness.

  5. James Joyner says:

    Anderson: I don’t argue that we have to be bound forever by the status quo 1791. My argument is that, absent a Constitutional amendment, that which isn’t precluded by the Constitution of 1791 isn’t unconstitutional.

    We now consider the execution of 7-year-olds out of bounds and, through the enactment of the legislatures of the several states, no longer do them. The Constitution doesn’t REQUIRE the execution of minors–or anyone, for that matter–it merely PERMITS it given due process of law.

  6. Karl Maher says:

    Excerpt from my post at Vote for Judges:

    Kennedy also, again, wrote a majority opinion overturning recent precedent. Lawrence overturned the 1986 decision in Bowers v. Georgia. Roper overturns the court’s 1989 decision in Stanford v. Kentucky.

    In other words, if we’re liberalizing U.S. law from the bench, stare decisis is yesterday’s news. Criticize Roe v. Wade as a judicial abomination, on the other hand, and you can’t even get seat on a circuit court. As long as the Democrats have 41 votes in the Senate, that is. See Pryor, William Jr.

  7. Anderson says:

    Yes, Kennedy is turning into quite the mystery man, isn’t he? Given his fondness for foreign law, an international man of mystery.

    I don’t think Mr. Joyner & I are going to agree on the Constitution’s ontological status, which is okay by me. Re: the 8th Amendment particularly, I think that “cruel and unusual” are terms that almost seem designed to imply evolving (devolving, if you like) standards. They didn’t say “cruel and unusual at the time this document was ratified.”

    But again, I don’t think much of today’s opinion, which is a dubious fix for a dubious problem, and will doubtless hand Bush a big stick for the upcoming Confirmation Wars.

    (Kennedy, agent provocateur? that *would* make him an International Man of Mystery! “He may look dumb, but that’s just a disguise,” as Charlie Daniels puts it.)

  8. Anderson says:

    Oh, & I meant to congratulate JJ on his Padilla post. The world needs more conservatives (and liberals) who think for themselves, & JJ is a fine example of the former.

  9. “Cruel and unusual” is a unique phrase in the Constitution, because by the very definition of its words, its meaning will change over time — to a much greater extent than any other phrase in the Constitution.

    If a given punishment becomes imposed less and less, eventually we can say it’s unusual. If it is also cruel, then it’s “cruel and unusual” and therefore it’s prohibited. Execution of minors in the United States has by now become so rare that this punishment has finally met the standard of “cruel and unusual.”

    Lots of punishments are cruel. It is cruel (in my opinion) to lock someone up in prison for 20 years. The fact that 19 states had laws on allowing execution of minors says nothing about the cruelty or the unusuality of the punishment. The critical fact is that it’s hardly ever imposed, and therefore it has become unusual.

  10. So everyone cheering about this ruling, think about this: As a result of this, the “jail without possibility of parole” will take effect or pass in most states.

    Now, you think executing someone is cruel, but putting someone who is 17 in jail until they die of old age is okay? With life expectencies increasing, you’re talking about someone doing 60 years, maybe 70, behind bars.

    And they will have no hope of EVER getting out. Well, maybe they’ll get lucky like Dahmer and get knifed in the showers some time over their half century plus in there.

  11. James Joyner says:

    Joel: Sure, “cruel and unusual” is an evolving standard. But it has evolved quite nicely through the democratic process.

    Capital punishment is hardly unusual in our society. One imagines, though, that relatively few minors will warrant a death sentence given that their age will be considered a mitigating factor in sentencing. One presumes, therefore, that those actually sentenced to death were the ones deemed to be especially despicable and culpable.

  12. Joel Thomas says:

    If the standard has to be what constituted cruel and unusal punishment in 1789, then it seems to me that under the second amendment, one only has the right to bear arms that were manufactured then, not what can be manufactured now. Or freedom of speech should only apply to words that were in existence when the Constitution was written.

  13. Just some guy says:

    Heh. So the Left just saved one of the Beltway Snipers from the death penalty! That’s right, Lee Boyd Malvo was 17 when he murdered all those people and terrorized the nation’s capitol on behalf of Al Qaeda in the aftermath of September 11. And now, he has been saved from the death penalty.

    See Director Mitch’s comment above. How long until an unelected liberal Federal judge lets this poor dear out of prison because long sentences for murderers under the age of 18 are “cruel and unusual”? Five years? Ten?

    I’m sure he will come out a well-adjusted and patriotic American.

  14. Jack Tanner says:

    Just a question but how would it be justified to try a 16 or 17 year old as an adult but not sentence them as an adult? If they are deemed culpable to stand trial why would they receive a sentencing exception?

  15. Elrod says:

    Thank God for this Court. The juvenile death penalty is an abomination. It’s not just a question of how many states have changed their laws, but how rarely juries wish to apply it because, well, it’s patently “cruel and unusal” and the citizenry already know it. So why haven’t more legislatures passed laws to reflect this fact? Because until very recently nobody could get elected to office unless they promised to streamline the road to the chair. Americans rediscovered their conscience over the last several years and, beginning with Illinois, have started to change the political climate such that legislatures can begin to restrict this grossly immoral practice. The Supreme Court recognized this and did humanity and America a great service.

  16. Katherine says:

    ” don’t argue that we have to be bound forever by the status quo 1791. My argument is that, absent a Constitutional amendment, that which isn’t precluded by the Constitution of 1791 isn’t unconstitutional.”

    Anderson: Beware this argument. It is a rhetorical trick mainly used to pretty up an ugly argument.

    Antonin Scalia used it in Romer v. Evans: Colorado isn’t excluding gays from the protection of the Constitution, it’s just requiring them to seek a different remedy. Right. In exactly that Dredd Scott merely forced opponents of slavery to seek another remedy. In exactly the sensee that laws banning miscegenation don’t exclude interracial couples from the equal protection of the law, it just makes them seek another remedy.

    This is also the exact same argument that John Yoo uses to justify telling the President that it’s legal to torture people. He explained in the New Yorker that the only “constitutional remedy is impeachment.” That’s much prettier than saying that “Unless and until he is impeached and removed from office, the President can violate the law at will.” But it’s the EXACT SAME ARGUMENT.

  17. Jack Tanner says:

    Sorry bleeding heart crybabies but explain how it’s cruel, unusual or immoral to execute John Lee Malvo. How many people did he execute in cold blood like they were targets at the carnival? Your perverse sanctimony about executing murderous sociopaths like Malvo or Kleibold just insults their victims.

  18. Joel Thomas says:


    I think there is a good possibility (I admit I’m not sure) that Christ would oppose executing juveniles. Jesus is a lot of things, perhaps, but not a bleeding heart crybaby.

  19. Tiffany says:

    I am totally against minors being sentanced to death. its wrong. Why should minors who have been influenced by the people around him be put to death? I know they should have known it was wrong but who could blam them? I also know that they have a mind of their own and a self conscience so they made the dicision to do the crime but they still have a life to life even if it means spending some of it in jail.

Kansas Woman Charged in Stinnett Murder-Kidnapping

Kan. Woman Charged in Slaying, Kidnapping (AP)

A baby girl who had been cut out of her mother’s womb was found after a frantic search, and authorities arrested the woman they say strangled the mother and stole the child. The baby was in good condition Saturday. The child was found Friday at an eastern Kansas home. A red Toyota similar to a description given earlier by police was in the driveway. Lisa M. Montgomery, 36, of Melvern, Kan., was arrested later Friday and charged with kidnapping resulting in death.

Bobbie Jo Stinnett, 23, was found Thursday in a pool of blood inside her small white home in Skidmore, a town in northwest Missouri. Stinnett, who was eight months pregnant, had earlier been talking with her mother on the phone, and hung up saying a woman she had chatted with online had just arrived at her door, authorities said.

U.S. Attorney Todd Graves said Montgomery contacted Stinnett through an online message board, and authorities zeroed in on her using computer forensics. Montgomery was seeking to buy a dog from Stinnett, who raised rat terriers, he said.
Stinnett, married for little more than a year and expecting her first child, worked at an engine factory in nearby Maryville. Her husband was at work when she was killed, authorities said.

The baby was named Victoria Jo and was united with her father, Zeb Stinnett, late Friday, Stormont-Vail Regional Health Center in Topeka said in a statement Saturday on its Web site. She was listed in good condition at the hospital’s neonatal intensive care unit. Zeb Stinnett called the girl “a miracle.” “I want to thank family, friends, Amber Alert and law enforcement officials for their support during this time,” Stinnett said in the news release.

Montgomery is the mother of two high school-age children, but Graves said she had been pregnant with another child that was never born. It’s unclear when she lost the baby or under what circumstances, but the complaint said she had lied to her husband about giving birth. Graves declined to give a motive for the crime.

Absolutely bizarre. And, isn’t this always the way:

The grisly slaying shocked neighbors in the towns where the two women lived. “They’re very normal country people,” said Sandra Bullock, 45, who lives about a mile down the road from the Montgomerys. “It’s too hard to believe.” Stinnetts’ neighbor Bill Dragoo was equally surprised. “It blows my mind that this happened,” he said. “She was such a shy person. They didn’t deserve this.”

Who does?

Update: The Amber Alert report has more:

A woman was charged Friday with killing a pregnant woman and kidnapping the baby that was cut from her womb. Authorities found the infant was found in good health, ending a day of frantic searching.

U.S. Attorney Todd Graves said Lisa M. Montgomery, 36, of Melvern, Kan., was charged with kidnapping resulting in death in the slaying of 23-year-old Bobbie Jo Stinnett, who was found nearly dead Thursday in her Skidmore home. Paramedics tried to revive her, but she was pronounced dead at a hospital.

Although DNA tests were pending to confirm the baby’s identity, authorities called off the Amber Alert issued for the child. “We’re confident we have the little girl that was taken from Skidmore,” Nodaway County Sheriff Ben Espey said during a news conference in Maryville.

Graves said Montgomery contacted Stinnett through an online message board. Montgomery was seeking to buy a dog from Stinnett, who raised rat terriers, he said.

Even more bizarre.

James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Kerry Accuses Bush of Hiding Troops Plan

Kerry Accuses Bush of Hiding Troops Plan (AP)

Democratic Sen. John Kerry on Friday accused the Bush administration of hiding a plan to mobilize more National Guard and reserve troops after the election while glossing over a worsening conflict in Iraq. “He won’t tell us what congressional leaders are now saying, that this administration is planning yet another substantial call-up of reservists and guard units immediately after the election,” Kerry said. “Hide it from people through the election, then make the move.”

The Democratic presidential candidate listed examples where he sees Bush misleading voters about Iraq, seeking to turn the conflict into a liability for Bush even as the president polishes his credentials as the best candidate to deter terrorists and protect the nation. Kerry portrayed the president as out of touch with a serious and dangerous situation. “With all due respect to the president, has he turned on the evening news lately? Does he read the newspapers?” Kerry said. “Does he really know what’s happening? Is he talking about the same war that the rest of us are talking about?”

Matt Drudge also has this:


I have learned through conversations with officials at the Pentagon that at the beginning of November, 2004, the Bush Administration plans to call up large numbers of the military guard and reserves, to include plans that they previously put off to call up the Individual Ready Reserve.

I have said publicly and privately that our forces are inadequate to support our current worldwide tempo of operations. On November 21, 2003, a bipartisan group of 135 members of the House of Representatives wrote to the President urging an increase in the active duty army troop levels and expressed concern that our Armed Forces are over-extended and that we are relying too heavily on the Guard and Reserve.

We didn’t get a reply until February 2004, and now as the situation in Iraq is deteriorating, it seems that the Administration will resort to calling up additional guard and reservists, again with inadequate notice.

It certainly appears if the Democrats are getting frantic over Kerry’s poor showing in the polls, willing to say or do just about anything to see if it helps. The sheer desperation–and it’s only mid September–is amazing.

James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. They’re throwing everything at the wall – eventually in the hope that something will stick.

    Wait for all the talk about the “secret plans for x” that you’ll hear the Democrats trumpet in the next few weeks.

  2. Wait a sec here. Sure, Kerry’s going crazy, but John Murtha is a Democrat I respect. He usually doesn’t go for the hysterics. Having been in his district, I know that he would only say this if he believed it to be true.

    Murtha is very much behind the War on Terror, so much so that our local university named their homeland security center after him. He has done a lot for the defense of this country. When voting between him (I never did, but seriously considered it, and would have done it if I were in Pennsylvania now) and a Republican, you can hardly tell the difference – he’s pro-life, for defense, etc. (Must be with the Dems for the social programs or something – or, more likely, the Unions.)

    Anyway, don’t dismiss what Murtha says out of hand. He’s not just another Democrat.

    (I’m not saying I agree with him here, but I am saying that he is much more reasonable than, say, Kennedy, and if he says this, he means it.)

  3. (I will note, though that he might have false information. I don’t doubt he believes this, though, nor do I doubt that he got it from the Pentagon.)

  4. KipEsquire says:

    BM, I really think you’re missing the point.

    QandO got it exactly right:

    we have here a representative who has no problem telling of military plans in advance of their execution if it will reflect negatively on his party’s political opponent or we have a representative who’s making something up (which can’t be checked) simply to frighten the families of Guardsmen and reservists in hopes of changing their vote.

    Which is it, and how is that “not just another Democrat”?

  5. McGehee says:

    I’m afraid I must — utterly without irony — question the timing.

    …at the beginning of November, 2004, the Bush Administration plans to call up large numbers of the military guard and reserves, to include plans that they previously put off to call up the Individual Ready Reserve.

    To me, this smacks of how the House Wacko Caucus (led by Baghdad Jim McDermott) tried to stir up anger over a “Bush Administration” plan to reinstate the draft — when it was they who were sponsoring the damn bill.

    Friend Minich, I think you underestimate the desperation of the Democrats at this point. The very idea that the Pentagon would tell a Democrat congressman, ‘Oh yeah, right after the election we’re gonna mobilize everybody we can get our hands on!” and not expect him to go public with it, is simply ridiculous.

    Methinks Murtha may have received a fax from Abilene.

  6. Sgt Fluffy says:

    I heard that they are going to be deployed to Elbonia

  7. I just heard on the ABC radio news that the Pentagon has indeed confirmed the troop call up, and says it is a part of standard operating procedure.


    In the end, it isn’t that big of a deal, but as I said before – Murtha tends to have his info right. Now the substance of the attack is another matter entirely (aka do we care about this).

  8. Found a story confirming the call up.

    However, it hardly sounds “secret”.

    The Pentagon announced in July that it intended to call back to duty about 5,600 Individual Ready Reserve members, discharged military personnel who haven’t served at least eight years of active duty.

    It doesn’t say when, but this is probably that “Novembert” group. Kerry’s definately overreacting here.

  9. M.Murcek says:

    I live in PA. Murtha’s the sort of doddering old idiot that infests government at every level in this state. The person who said he respects Murtha is to be pitied…

  10. Ryan says:

    Kerry portrayed the president as out of touch with a serious and dangerous situation. “With all due respect to the president, has he turned on the evening news lately? Does he read the newspapers?” Kerry said. “Does he really know what’s happening? Is he talking about the same war that the rest of us are talking about?”

    Who needs the CIA or House intelligence committees, all John Kerry needs to protect our country is a remote control and reading glasses.

  11. OF Jay says:

    Doc, I just found out yesterday that my reservist friend “may or may not” be re-enlisted and “may or may not” be deployed in what “may or may not” be Iraq. Does it hit home? Of course. Does it worry me? Like I have never felt before. But is this something the Bush administration is clandestinely operating? bull.

    For John Kerry to accuse the president of using an election to hide the matters of *running a war* is just beyond the pale, and as Michael Demmons noted, reeks of desperation.

  12. Bithead says:

    …”A democrat I respect”….

    There’s your first mistake.

    But let’s look seriously at Kerry’s charge.
    Wasn’t Kerry just a short time ago complaining we didn’t have enough people, and that Bush was incopmpetant, thereby?

    So, now, that it turns out an SOP call-up was already in the works, Kerry goes crazy because “Bush is hiding soemthing”

    Is there anyone left in America, that does not understand that Kerry will bictch about Bush no matter which way he goes?

  13. Ric Locke says:

    Husler Minich,

    I visit Murtha’s district from time to time. From the number of things named after him around there, I’d more or less assumed he was the Second Coming of Huey P. Long. My gun-toting small-town acquaintances there tend to agree.

    Ric Locke

  14. LJD says:

    The Pentagon announced a call-up of 5,600 reservists in May. The first round was called the first week of July, the second during the second week of August. To date, about 3,800 reservists have gotten orders. The announced call-up was scheduled to take place through December. There are about 118,000 troops in the IRR, this call-up represents less than 5%.

    Democrats will unscrupulously say anything to get elected, even if it contradicts earlier statements. (Remember- we need MORE troops in Iraq, what he said before he offered to bring the troops HOME!) Such short memory for the self-declared “visionaries”.. I’m tired of hearing about the “Republican Draft”, since the bill on the floor was proposed by two DEMOCRATS (Wrangell, Hollings)!!!

    Now for the no-brainer part. It seems inevitable, with the state of affairs in the world, that more IRR will be called up in the future, regardless of who is president. I am in the IRR, and I EXPECT it to happen. Will I change my vote based on who I think might be more likely to do it? Definitely NOT! It is a foolish venture to waste a vote based on the belief that a certain candidate will keep your military family member at home. Kerry cannot keep that promise.

    I am voting for the incumbent because of the likelihood that our country will be a safer place. Not for the challenger, who represents the party whose lame foreign policy has gotten us into this terrorism mess to begin with.

  15. McGehee says:

    I am in the IRR…

    Thank you, LJD, for your service to our country and your readiness to continue doing so.

House Leaves Patriot Act As Is


AP – Bush Wins; House Leaves Patriot Act As Is

The Republican-led House bowed to a White House veto threat Thursday and stood by the USA Patriot Act, defeating an effort to block the part of the anti-terrorism law that helps the government investigate people’s reading habits. The effort to defy Bush and bridle the law’s powers lost by 210-210, with a majority needed to prevail. The amendment appeared on its way to victory as the roll call’s normal 15-minute time limit expired, but GOP leaders kept the vote open for 23 more minutes as they persuaded about 10 Republicans who initially supported the provision to change their votes.

“Shame, shame, shame,” Democrats chanted as the minutes passed and votes were switched. The tactic was reminiscent of last year’s House passage of the Medicare overhaul measure, when GOP leaders held the vote open for an extra three hours until they got the votes they needed. “You win some, and some get stolen,” Rep. C.L. Butch Otter, R-Idaho, a sponsor of the defeated provision and one of Congress’ more conservative members, told a reporter.

Rep. Zach Wamp, R-Tenn., said he switched his initial “yes” vote to “no” after being shown Justice Department documents asserting that terrorists have communicated over the Internet via public library computers. “This new world we live in is going to force us to have some constraints,” Wamp said.

The effort to curb the Patriot Act was pushed by a coalition of Democrats and conservative Republicans. But they fell short in a showdown that came just four months before an election in which the conduct of the fight against terrorism will be on the political agenda. Besides successfully fending off the effort to weaken the law, the veto threat underscored the administration’s determination to strike an aggressive stance on law enforcement and terrorism.


Supporters of the law said the Patriot Act has been a valuable tool in anti-terror efforts. The law, enacted in the weeks after the Sept. 11, 2001, attacks, gave the government stronger powers to conduct investigations and detain people. “I would say, in my judgment, that lives have been saved, terrorists have been disrupted, and our country is safer” because of the act, said Rep. Porter Goss, R-Fla., chairman of the House Intelligence Committee and a man President Bush is considering to be the next director of the Central Intelligence Agency.

Otter and Rep. Bernard Sanders, I-Vt., led the effort to block one section of the law that lets authorities get special court orders requiring book dealers, libraries and others to surrender records such as purchases and Internet sites visited on a library computer. They contended the provision undermines civil liberties and threatens to let the government snoop into the reading habits of innocent Americans. “We are all in that together,” Sanders, one of Congress’ most liberal lawmakers, said of the anti-terror effort. “In the fight against terrorism, we’ve got to keep our eyes on two prizes: the terrorists and the United States Constitution.”


Rep. Frank Wolf, R-Va., read a letter from the Justice Department stating that “as recently as this past winter and spring, a member of a terrorist group closely affiliated with al-Qaida” had used Internet services at a public library. The letter mentioned no specifics, Wolf said. “If we can stop what took place in my area,” said Wolf, whose district is near the Pentagon, a Sept. 11 target, “then I want to stop that, because we’ve gone to enough funerals.”

Critics of the Patriot Act argued that even without it, investigators can get book store and other records simply by obtaining subpoenas or search warrants. Those traditional investigative tools are harder to get from grand juries or courts than orders issued under the Patriot Act, which do not require authorities to show probable cause. “We don’t want tyranny,” said Rep. Jerrold Nadler, D-N.Y.

According to a list read by a House clerk, lawmakers switching their votes from “yes” to “no” included GOP Reps. Michael Bilirakis of Florida, Rob Bishop of Utah, Tom Davis of Virginia, Jack Kingston of Georgia, Marilyn Musgrave of Colorado, Nick Smith of Michigan, Thomas Tancredo of Colorado, and Wamp. Some Democrats switched from “no” to “yes,” including Robert Bud Cramer of Alabama, Rodney Alexander of Louisiana, and Brad Sherman of California.

While the House, unlike the Senate, traditionally uses hardball tactics to ram bills through that the majority party supports, changing the rules after the fact seems beyond the pale–although I don’t know precisely what the Rules Committee had stipulated.

Zach Wamp was briefly my Congressman (I lived in Chattanooga for 18 months during his Freshman term) and Frank Wolf is my current Congressman; both are quite conservative and their votes don’t surprise me. I’m a bit surprised that Bud Cramer, whose voting record is also quite conservative, was persuaded to vote the other way–it’ll hurt him in Alabama, although he may be sufficiently entrenched as to be bulletproof.

Substantively, I find it hard to get worked up about the specific Patriot Act provisions in dispute here. While I find the declaring of American citizens as “enemy combatants” unconscionable, that’s not at stake here. Giving Federal agents the ability to look at Internet records and whatnot with judicial authority under “reasonable suspicion” rather than “probable cause” doesn’t both me. Those things aren’t particularly intrusive and we already use the lower standard for such things as vehicular searches–which strikes me as much more problematic than looking at library records.

FILED UNDER: Intelligence, Terrorism, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. 42nd SSD says:

    I agree; there are worse things than having the government peeking at what we read. But I do have concerns that it can easily be perverted into something worse. “After extensive analysis, we find that people who [`use drugs illegally’|`suffer from depression’|’use Unix’] tend to read [list of books], so to [`protect our children’|`fight the war on drugs’|`help Microsoft’] we’re starting a major effort to look for these patterns on a preemptive basis.”

    One major difference I see between searching cars and analyzing reading habits is the amount of knowledge they will eventually decide they can derive from the latter. A car search is pretty specific–you’re looking for “contraband”, whatever that may be. (Although the amount of trash in someone’s car may tell us something…)

    Looking at reading habits is a somewhat vague hope of deciding if someone is a crazed weasel terrorist Unibomber clone, manic-depressive, psychotic, whatever. It’s not a specific search but a stab in the dark, as presumably we (currently) don’t have specific prohibited books, unlike prohibited drugs or weapons.

    It also seems inevitable that the rights of minors to any sort of privacy with regard to what books they buy/read will be sacrificed. While in many cases this may not be a bad thing, some parents will abuse this. “Aha! You’ve been reading that atheist tripe by James Randi! Off to the Christian brainwash camp with you!”

    On the other foot, I can almost convince myself that lists of books people check out from the public library should be made public knowledge. After all, a taxpayer-supported library is, indeed, supported by taxpayers–so why shouldn’t they know what books people are reading, if they really feel a need for this?

    Finally, I don’t feel a need to pay for computer access in libraries so people can secretly download pr0n (or whatever). I don’t personally care if they download pr0n, but I also don’t see any reason not to make it public knowledge.

  2. Attila Girl says:

    1) Where does it say that the gummint may (or is obligated to) share its findings with the parent of a minor? I don’t think such a thing is the function of the state, but I don’t really think they are doing this. Am I wrong?

    2) This type of thing isn’t as problematic as it sounds, as the person who is truly committed to privacy can still go to a bookstore and pay cash for The Anarchist’s Cookbook or whatever it is they want to read. I also imagine that a few books here and there are assumed to be curiosity/research, and there’s a huge “critical mass” of Paladin/whatever titles one needs to draw Federal attention. Also, the juiciest titles are available at gun shows. Again–cash.

    I think this type of action is more about *not* making things easy for terrorists, rather than getting into the details of what average citizens are doing; I suspect they don’t care about that.