“People Have Told Me About Stops!”: The Chief Justice Has Never Been Pulled Over In His Life
In a little-noticed hearing last month, the Supreme Court considered Rodriguez v. United States, a case involving the Fourth Amendment’s protection against unreasonable searches and seizures. The core issue the justices confronted was how long a police officer could extend a routine traffic stop for purposes of calling in the dogs—drug-sniffing dogs.
At first blush, the question seems uncomplicated and slightly mundane. Who cares about police canines? The vast majority of drivers won’t be drug kingpins or carry illegal contraband in their cars. But the Fourth Amendment doesn’t exist to protect drug traffickers; it protects everyone from police overreach. Whatever the court decides on any Fourth Amendment case—the court accepts a number of them every year—should matter to everyone.
And judging from how oral arguments in Rodriguez played out, you have reason to worry about how the justices will rule. Because for an hour, they grappled, interrupted one another, suggested potential rules, posed lengthy hypotheticals, and in the end couldn’t seem to reach any consensus on how to decide the case. Viewed charitably, the hearing was a hot mess.
The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”
There was laughter in the courtroom. And the lawyer, recently retired federal public defender Shannon P. O’Connor, played along and responded with humor: “I’ve had friends that say the same thing, Mr. Chief Justice.”
But to anyone who closely watches the court’s jurisprudence on the Fourth Amendment, there’s nothing funny about Roberts’ naiveté about traffic stops, let alone his ignorance of the real frustration that comes with being kept even a second longer than necessary. The “seizure” of a person, in constitutional lingo, is in fact part and parcel of all of our recent conversations about policing in America. New York’s stop-and-frisk saga, the death of Michael Brown, and incidents involving use of force by police all implicate police departments’ and courts’ interpretation of the Fourth Amendment.
Justice Sonia Sotomayor was not amused. Later in the arguments, she turned to Roberts and said, “Chief, I’ve been stopped … [and] keeping me past giving me the ticket is annoying as heck, whether it’s five minutes, 10 minutes, [or] 45.” She placed a lot of emphasis on the word heck.
Sotomayor knows a little something about stops, and no, it has nothing to do with her upbringing in the Bronx or the fact that she has been pulled over before. She is the only sitting justice who actually has criminal trial experience—first as a prosecutor, and later as a district judge in Manhattan. She has presided over hearings calling for the suppression of illegal evidence, over criminal trials where that evidence was later at play, in civil cases against prison officials and police officers accused of false imprisonment or the use of excessive bodily force. She has seen how the Fourth Amendment plays out in real life.
This first-hand experience may explain why she was the lone dissenter in another case involving brushes with law enforcement. In December, she and Roberts were on opposite ends in Heien v. North Carolina, a case that green-lighted reasonable “mistakes of law” as the basis for a traffic stop. Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.
“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”
Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”
Though Roberts’ deference towards police ignorance won the day in Heien, Sotomayor did take an opportunity to remind her colleagues that the ruling will have real-life effects on those most likely to endure uncomfortable encounters with the police: minorities and communities of color. She wrote that the court’s decision has the potential of “further eroding the … protection of civil liberties in a context where that protection has already been worn down.” She called these the “human consequences” of the court’s rulings on the Fourth Amendment and wondered “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.”
Roberts, for all his intelligence, is ill-equipped to wrap his brain around that scenario; he has never been stopped by the police before. (The Supreme Court press office did not reply to a request for confirmation of Roberts’ lack of experience in this regard.) He did author a landmark ruling last year on the necessity of warrants prior to rummaging through a cellphone, but think of the factual premise: He probably does have a smartphone with extremely personal information.
Not so with close encounters with police. To assume that he and the rest of the court will issue a principled ruling on how many minutes a traffic stop can be extended—the answer, in a perfect world, should be zero—ignores that the court has already ruled constitutional far more invasive government practices, all under the guise of reasonableness, pat-downs and body-cavity searches among them.
America’s attention will turn to Obamacare and same-sex marriage when the Supreme Court entertains them later in the year. It is little cases like Rodriguez—easily lost in the news cycle—that have the greatest potential to undermine further the already-strained relationship between the community and the police.
By: Cristin Farias, Slate, February 11, 2015
“Like A Rooster Taking Credit For The Sunrise”: Evidence Of Rand Paul Losing Another Fundraising Stream
The relevant details are still elusive, but President Obama is reportedly prepared to propose sweeping changes to U.S. surveillance policy, including an end to the National Security Agency’s bulk data collection. The reforms will be dependent on congressional approval, but for privacy advocates and civil libertarians, the White House’s apparent intentions are most welcome.
But this is still silly.
Sen. Rand Paul (R-Ky.) said he takes some credit for President Obama’s decision to end the National Security Agency’s metadata collection program.
In an interview after Obama announced the change on Tuesday, Paul was asked on “Fox and Friends” if it would make him happy for phone companies, not the government, to retain the metadata.
“Well, you know, I don’t want to take all the credit for ending this, but I think our lawsuit had something to do with bringing the president to the table,” Paul said.
Look, if Edward Snowden and his defenders want to take some credit for NSA reforms, they’re on solid ground. Putting aside the debate over the legality and propriety of his leaks, Snowden’s revelations obviously were dramatically consequential, caused an international controversy, and were directly responsible for the debate that led to the administration’s review.
If Glenn Greenwald, Barton Gellman, and other journalists responsible for reporting on NSA surveillance want to claim some credit, too, they also have a credible case to make, for many of the same reasons.
But for Rand Paul to toot his horn on Fox is just foolish.
For one thing, the senator’s timeline is badly flawed. President Obama delivered a speech in January ordering an internal review of possible changes to U.S. surveillance policy. When did Paul file his lawsuit? Nearly a month later.
In other words, according to Rand Paul, the president didn’t launch this process in response to a global firestorm, but rather, in anticipation of a stunt lawsuit from a senator that hadn’t even been filed yet.
For another, Paul’s lawsuit wasn’t exactly a credible effort. It was a redundant case, largely mirroring a case that had already been filed by someone else, and it was organized through the senator’s political campaign, rather than his official Senate office. (Supporters were supposed to endorse Paul’s lawsuit against “Big Brother” by giving the senator their name, address, zip code, and if they didn’t mind, credit card number.)
It’s very hard to believe the White House was scrambling to change their national-security policies in response to a Rand Paul p.r. stunt.
It makes sense that the senator is trying to turn this into a positive for him, but as a practical matter, if the reports are accurate and the administration is prepared to scrap the controversial NSA program, it’s not evidence of Paul winning; it’s evidence of Paul losing a fundraising stream.
By: Steve Benen, The Maddow Blog, March 26, 2014
“Rand Paul’s ‘Youth’ Snow Job”: Why He’ll Never, Ever, Ever Win Over Young Voters
With a Chris Christie comeback looking less likely and a Jeb Bush shadow campaign only just now entering its preliminary stages, the political media that isn’t tethered to the Hillary Clinton beat — where news of no news is treated as news — has turned its eyes to Kentucky GOP Sen. Rand Paul, the man who will singlehandedly bring his party into the 21st century by referencing modern cultural touchstones like Pink Floyd, Domino’s pizza and Monica Lewinsky. The narrative, pushed by Paul’s office and accepted by bored, middle-aged members of the press, is that the 51-year-old libertarian is just what Republicans needs to win over millennial voters and reclaim the White House in 2016.
To be blunt: This is a stupid narrative and everyone who isn’t being paid by the Republican Party to promote it needs to stop.
Before getting into why the idea of Millennial Man Rand Paul is nonsense, it’s worth unpacking the argument. To be fair, it’s a bit more sophisticated than what I’ve described above. As Joe Gandelman put it in a deeply unpersuasive article for the Week, the curly-haired lover of liberty “has appeal to millennials disillusioned by intrusive government surveillance and aggressive drone strikes,” and that means he “could really boost his numbers in GOP contests if he’s able to mobilize young voters…” This could “snowball,” Gandelman writes, so long as Paul can convince the kids that he’s “truly a candidate of change,” a proposition made all the more likely by the fact that “Paul would be the first GOP nominee whose ideology is genuinely anchored in libertarianism, with positions that often can’t be neatly categorized.”
Putting those last two assertions aside — I’d say Barry Goldwater’s ideology was quite clearly “anchored in libertarianism” and that libertarian positions can, in fact, be “neatly categorized” as, well, libertarian — Gandelman’s argument boils down to the following: Young people don’t like the NSA and drones, so they might vote for Paul, who is also a skeptic of the post-9/11 national security paradigm. Yet while he’s right that millennial voters are far less comfortable with spying and drone strikes than the rest of the electorate, Gandelman exaggerates the intensity of their disaffection.
On spying, for example, it’s true that young voters are more concerned with civil liberties; but as a 2013 Washington Post poll found, 18- to 39-year-old Americans still think investigating terrorist threats is more important than preserving civil liberties, by a breakdown of 52 to 45 percent. On drone strikes, meanwhile, a 2013 Fox News poll finds the conventional wisdom to be even more out of touch: by a score of 65 to 32 percent, respondents under the age of 35 said they approve of the U.S. using drones to kill suspected terrorists on foreign soil. In fact, the only scenario for which a majority of the under-35 crowd disapproves of drone strikes is if the suspect is an American citizen and the strike takes place on U.S. soil. Even then, it’s hardly a blowout, with 44 percent registering their approval.
So Gandelman’s pretty wrong, any way you slice it. But a better argument for Paul’s appealing to young voters is possible, and was indeed offered by Ross Kaminsky in the American Spectator. Instead of leaning so heavily on the assumption that kids these days hate Big Brother, Kaminsky notes that on issues where millennial voters really stick out from the rest — marriage equality and immigration reform — Paul has tried to “thread the needle” by adopting positions that are slightly more nuanced than the GOP norm. Paul’s against same-sex marriage, yes, but he thinks it’s an issue best “left to the states” and has argued that a reform of the tax code, “so it doesn’t mention marriage,” would save the country from having to “redefine what marriage is…” On immigration reform, too, Paul ultimately votes with the rest of his party, but does so while leaving some wiggle room for expanding the work visa program and legal immigration in general.
Better is a relative term, however. While it’s true that Paul doesn’t usually sound like an unreconstructed homophobe on the issue of gay marriage, it’s also true that Paul has jokingly compared same-sex marriage to polygamy and bestiality, putting himself in the same company as that noted champion of individual rights, Rick Santorum. Moreover, while nuance is nice, the fact remains that Paul is, objectively, against marriage equality. Why would a millennial voter who cares about LGBTQ issues support the guy who opposes marriage equality, and compared same-sex partnerships to bestiality, over a candidate who doesn’t do either of those things? Because nuance? Further, why would a millennial voter who wants to see immigration reform happen in this country support a candidate who doesn’t? Because he’s willing to accept immigrants as a source of labor, even if he doesn’t think they deserve a path to citizenship? Because, again, nuance?
Granted, Kaminsky and his fellow travelers would probably say that while Paul won’t win millennials over on these issues, his “balanced” approach might be enough to keep them from dismissing him before listening any further. There’s probably something to that. But there’s still a problem: It’s not like millennials are exactly in sync with Paul’s views on economic issues, either. Kaminsky’s implication that younger voters would thrill to Paul’s doctrinaire laissez faire approach to the economy, if they could only look past social issues, just doesn’t withstand even a little bit of scrutiny.
It’s true that millennial voters are not nearly as enthusiastic about the positive role government can play in promoting social and economic equality as they were in the early days of the Obama era. Back then, according to a 2009 report from the Dem-aligned Center for American Progress, as much as two-thirds of young voters said that government should provide more services, while three-fourths said there were more things the government could and should be doing. A half-decade of Democratic incompetence and Tea Party obstruction has definitely taken its toll.
Nevertheless, a Pew Research Center report put out earlier this month found that the majority of millennials still want to see their government do more, not less, to even the playing field. Asked to choose between smaller government with fewer services and bigger government with more services, 53 percent of millennials chose the latter while only 38 percent picked the former. And even though 54 percent of them oppose Obamacare, only 44 percent agree with Paul that it’s not the government’s job to ensure health insurance coverage for all. Perhaps the most telling finding of the whole report in this regard concerns Social Security, that longtime bugaboo of Paul and libertarians like him. Despite the fact that a whopping 51 percent of millennials believe they’ll receive no Social Security benefits by the time they’re eligible, and despite the fact that 53 percent of millennials think government should focus spending on helping the young rather than the old, a remarkable 61 percent of young voters oppose cutting Social Security benefits in any way, full stop.
Persuasive as they can be, though, polls can’t tell us everything. As mentioned earlier, History happens, and people’s views can change. Demography may be a more reliable metric, then (even if too many Democrats have succumbed to the fallacious “demography is destiny” belief that a more racially diverse rising electorate will guarantee Dems a permanent majority). Paul certainly appears to be thinking about the country’s demographic changes; he seemingly can’t go 10 minutes into an interview or public statement without noting that his party must be more “inclusive” and “welcoming” to what Republicans like to call, in a triumph of euphemism, “non-traditional” voting blocs.
But as his much-discussed speech last year at Howard University — and his recent decision to chide Obama for failing to remember how Martin Luther King was spied upon — can attest, Paul’s version of outreach is not without its blemishes. He deserves some amount of credit for recognizing that non-white voters matter, too, I guess. But as is the case with immigration and same-sex marriage, Paul’s attempts at nuance are more than outweighed by his concrete policy stances. Simply put, I doubt that a young voter of color is going to look sympathetically at the image of a white, Southern conservative whitesplaining Martin Luther King to the first African American president — especially if that voter happens to know that Paul supports modern versions of the voter suppression tactics King and other civil rights heroes risked their lives to end. And what do you think the chances are that a Democratic presidential candidate would bring up Paul’s infamous attack on the Civil Rights Act of 1964 during a national campaign? I’d say they’re pretty, pretty, pretty good.
To recap, here’s the case for Rand Paul, millennial hero: He’s against surveillance and drone strikes, two issues on which the millennial vote is divided; he’s against comprehensive immigration reform and same-sex marriage, two things that millennial voters strongly support; he’s against big government and universal health care, two more things a majority of millennial voters back; and he likes to talk about getting people of color to vote for him, despite supporting voter suppression and the right of businesses to engage in race-based discrimination. Oh, and he’s comfortable telling the first black president, the one who “surrounds himself with Martin Luther King memorabilia in [the] Oval Office,” how he’s failing to live up to King’s legacy.
So can we stop with this nonsense now? Please?
By: Elias Isquith, Assistant Editor, Salon, March 22, 2014
“Dark, Heartless And In No Position To Criticize”: It’s Time For Dick Cheney To Get Off The Stage
In the midst of the Crimean crisis, Dick Cheney saw fit to undermine the commander in chief. “I also think he hasn’t got any credibility with our allies,” Cheney said Sunday on a CBS News broadcast, speaking of President Obama.
That’s unseemly, to say the least, in a foreign policy crisis. A once-high official simply does not say such things about a sitting president, by protocol; George W. Bush is scrupulously silent these days. It’s just Cheney’s latest outrage; keeping track is like counting cattle.
Who asked him, anyway? Charlie Rose, hosting Bob Schieffer’s Sunday show, “Face The Nation.” Rose apparently had not heard of a famous declaration by a Republican senator, one swell Arthur Vandenberg, that “politics stops at the water’s edge.” Cozy with his Southern charm, Rose did not challenge Cheney’s bald, ugly assertion about President Obama, laced with an edge malice. Old pro Schieffer, my favorite CBS Newsman, wouldn’t let an unpatriotic line go by so easy.
Why wasn’t Cheney back home on the range in Wyoming, where the deer and the antelope play — all the better to hunt? Let him leave us in peace and spend more time with his family.
The country knew of Cheney’s glaring influence inside the Bush White House and its wars of choice. Less known is that the former president and Cabinet colleagues had grown weary of Cheney’s sharp style and he’d eventually lose his place in the power scheme. The man who ducked every chance to serve in uniform during the Vietnam War seemed to see himself leading “on the field of battle” in a dark shadowy conflict. He took the tragedy of September 11 into other spheres as well and masterminded scaring us into surrendering our civil liberties.
Yet Cheney’s star began to wane about six years into the Bush presidency, according to Peter Baker, the author of “Days of Fire.” This was about the time Bush himself fell out of public favor.
By then, the nation was weary of war, especially the empty grounds for the Iraq War. At home, Bush’s cavalier reaction to the 2005 Hurricane Katrina drowning of New Orleans awakened the nation out of a slumber. So, of course, not all the failings of his presidency had Cheney’s fingerprints on them.
But back home on the Texas ranch, Bush himself wrote in his memoir that Cheney had “become a lightning rod for criticism from the media and the left. He was seen as dark and heartless — the Darth Vader of the administration.”
Cheney has not lightened up since.
By: Jamie Stiehm, Washington Whispers, U. S. News and World Report, March 11, 2014
The Reality Versus The Imaginary”: Does It Matter If Edward Snowden Is A Russian Spy?
We already know that Edward Snowden is dependent on the Russian government to keep him out of reach of the American justice system. But accusations have recently been made that Snowden’s relationship with the Kremlin goes much deeper than we previously suspected.
On Sunday, House Intelligence Chairman Mike Rogers (R-Mich.) strongly suggested that Edward Snowden stole NSA secrets with help from Russia, though Rogers declined to provide any evidence to back that suggestion.
The following day, The New Republic‘s Sean Wilentz published a harsh profile chronicling the backgrounds of Snowden and his muckraker allies Glenn Greenwald and Wikileaks founder Julian Assange, discerning a common thread of “paranoid libertarianism” that has paradoxically intertwined these self-proclaimed defenders of human rights with a brutal Russian autocracy.
And while Wilentz stops short of accusing Snowden of espionage, Business Insider‘s Michael Kelley also explored Snowden’s ties to Russia, eventually asking, “Is the fact that his life is now overseen by a Russian security detail more than an extraordinary coincidence?”
It bears repeating: No one has produced evidence that Snowden was on Russia’s payroll when he stole the NSA’s secrets. But suppose he was — would it matter?
To answer that question, we need to separate two different controversies surrounding the world’s most famous whistleblower.
First, to resolve the debate over whether Snowden deserves some form of clemency, his motivations and actions are integral. If it is found that he passed national security secrets to Russia or China, that would completely outweigh whatever benefits he has provided to Americans in better understanding the scope of NSA surveillance. Since that question is far from resolved, the New York Times editorial board and others are premature in promoting clemency.
Indeed, Slate‘s Fred Kaplan, in his argument against clemency, flagged that Snowden has not leaked “any documents detailing the cyber-operations of any non-allied countries, especially Russia or China,” even though he presumably would have had access to NSA information regarding their operations. He even leaked information about American operations against the Taliban, which, as Wilentz noted, has nothing to do with protecting American civil liberties, but instead helps Snowden and his allies “damage their bugaboo national security behemoth.”
As Wilentz argued, Snowden, Greenwald, and Assange possess an extreme libertarianism, driving them to undermine American foreign policy. The three, wrote Wilentz, “have unleashed a torrent of classified information with the clear intent of showing that the federal government has spun out of control…an imperial power, drunk on its hegemonic ambitions.”
On the flip side, if Snowden could somehow prove that he is an American-as-apple pie idealist who simply wants to share information with his fellow citizens, the argument for clemency gains more weight.
However, to resolve the debate over what forms of surveillance are constitutionally sound and effective at counter-terrorism, Snowden’s motivations are fundamentally irrelevant. One could simultaneously believe that Snowden deserves the electric chair for aiding foreign powers, and that the NSA’s bulk collection of metadata violates the Fourth Amendment. Or, that Snowden acted in good faith, yet what he uncovered merely shows an NSA properly focused on terrorism and operating within the bounds of the Constitution.
Yet the latest revelations about Snowden may help clear a path to having a more rational debate about the NSA. The latest reporting suggests that his motivations are at least ideologically suspect and possibly unpatriotic, which makes it easier to sideline Snowden and simply focus on the NSA itself.
Most Americans, regardless of their views on the NSA, don’t possess the reportedly extreme views of Snowden, and don’t see America’s actions on the global stage as deserving of more scorn than Russia or China.
Much is at stake, both in terms of our liberty and our security, as we discuss whether President Obama’s NSA reforms are either appropriately mild or insufficiently drastic. It is in our interest to premise the discussion on what the NSA is doing — not what is being imagined by political extremists, or just possibly, anti-American spies.
By: Bill Scher, The Week, January 23, 2014
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