Balkinization  

Tuesday, April 21, 2009

strip searches and torture

Sandy Levinson

The Supreme Court will here today the arguments in Safford Unified School District v. Redding, involving the coerced strip search of then-13-year-old Savana Redding because of a wholly non-probable-cause-based belief that she might have possessd a banned prescription drug. Needless to say, she did not. As I was listening this morning to Nina Totenberg's overview of the case, it struck me that there is an obvious connection between this case and the interrogation policies of the US involving forced nudity (and worse). The School Board is basically making a "precautionary principle" argument that the threat posed by even a single drug at the school justifies doing "whatever it takes" to ferret out potential carriers. To oppose what some hotheads might describe as the fascistic school board is to label oneself "soft on drugs." I wonder if any of the judges, albeit subconsciously, might realize that to uphold the School Board's egregious misconduct is precisely to play into the hands of Dick Cheney and his own version of the precautionary principle.

Interestingly enough, the United States is arguing, amicus curiae, both that the conduct was forbidden by the Constitution and that the school authorities should be able to claim a qualified immunity from prosecution, presumably because they might "reasonably" have believed they could engage in such outrageous action even though the "true reading" of the Constitution is that they can't. So this, too, obviously dovetails with some of the debates concerning prosecution of CIA (and other) operatives who had been handled "you-never-have-to-fear-jail" cards by United States Court of Appeals Judge Jay Bybee, University of California Professor of Law John Yoo, and the currently unemployed Alberto (Fredo) Gonzales.

In any event, Redding may involve far more than a single traumatized student. (I'm curious whether the libertarians on this list really believe that school authorities should be able to engage in such conduct on the basis of "hunch." For that matter, one might wonder about strip searches of 13-year-old girls even with "probable cause," but that's clearly not this case at all.)




Comments:

Sandy:

"I'm curious whether the libertarians on this list really believe that school authorities should be able to engage in such conduct on the basis of "hunch.""

Of course not.

As for your comparison between foreign al Qaeda terrorists and this 13 year old American, the latter possesses constitutional rights from unreasonable search and seizure while the former does not (at least not yet depending upon Kennedy's mood at the time such a case might reach him).
 

"I'm curious whether the libertarians on this list really believe that school authorities should be able to engage in such conduct on the basis of "hunch.""

absolutely, unequivocally not. If they had reasonable suspicion or probable cause that this student was in possession of the Rx drugs then maybe a search of a locker or backpack would be warranted. But a strip search of a 13 year old girl in a public school based on a hunch is criminal, bordering on sexual abuse or assault. The girls rights were clearly violated and the school officials who ordered/carried out the search should all be fired and possibly criminally charged.
 

I am reassured by the breadth of teh Balkinization consensus that the actions of the school officials indeed "shock the conscience" and violate fundamental American norms. So it will be especially interesting to see what the august members of the Supreme Court say in this case, especially Scalia and Thomas.
 

It's worth noting that both aspects of this case are offensive-- not only the strip search, but the fact that the "drug" in question was Ibuprofen.

This case is basically a tribute to the War on Drugs gone mad.
 

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Sandy:

Speaking of searches, here is a suggestion for a future thread. The story broke this morning that NSA is indeed spying on Americans. However. Mr. Obama may need a kick in the butt by civil libertarians to investigate this.
 

This comment has been removed by the author.
 

There is a connection, especially since treatment of Padilla etc. underline there is no citizenry exception in practice in respect to treatment of alleged terrorists, but it is clearer when underage minor citizens allegedly having pills they could use for bad periods in their possession.

So, let's be careful with the comparisons a bit. Also, let's be careful with our hope. Scotusblog suggests the justices tried to bend over backwards to help the school here. Justice Kennedy spoke about "druggie schools" when innocent kids didn't want to opt out of sports and clubs to avoid drug tests. Holding up silly pro-pot signs are liable to get you in trouble, even in a state that in the 1970s found personal marijuana use a state privacy right.

Justice Stevens in his separate opinion in NJ v. TLO (1985) argued "shocking strip searches" have no place in the schoolhouses. Tellingly, he cited Justice Brennan's opinion dissenting denial of cert.

Today's opinion of Arizona v. Gant suggests Scalia and Thomas DO respect some limits to searches, but Thomas in particular thinks schoolhouses are different.
 

This comment has been removed by the author.
 

video hereCharles is right too, btw.
 

... a wholly non-probable-cause-based belief that she might have possessd a banned prescription drug...AFAIK, The "banned" drug was (allegedly) ibuprofen, hardly prescription.

Cheers,
 

What an insightful post Sandy.

And Bart...

What sort of libertarian thinks 13-year old girls have rights but the citizens of other countries do not?

If YOU are arrested by a foreign government and held prisoner, do you have rights?

Of course you do.

Our laws are not unclear about this in the least: all people have certain basic rights, regardless of citizenship. No one claims that aliens have the full rights of citizens, but the basic right of liberty is a right by virtue of humanity, not citizenship. To claim otherwise is to renounce the US Constitution in favor of bigotry and tyranny.
 

Charles Gittings:

Our laws our not unclear on this in the least: all people have ceratin basic rights, regardless of citiznship.
No, no, no... You have it all wrong. People only have the rights our gummint says they can have.

All rights not granted to the people, or reserved to the states, belong to the gummint. We are the Borg. You will be assimilated.

Cheers,
 

Charles Gittings said...

"And Bart... What sort of libertarian thinks 13-year old girls have rights but the citizens of other countries do not?"

Anyone with a passing acquaintance with the Constitution and the ability to tell the difference between the People and foreign enemies attacking the People.

CG: "If YOU are arrested by a foreign government and held prisoner, do you have rights?"

If I decide to join or support al Qaeda in a war against the people of that foreign country and presuming that country is a signatory to the GCs, I have the same very limited rights of the other unlawful combatants in al Qaeda. I made my decision and must accept the consequences.

CG: "Our laws are not unclear about this in the least: all people have certain basic rights, regardless of citizenship. No one claims that aliens have the full rights of citizens, but the basic right of liberty is a right by virtue of humanity, not citizenship."

Enemy combatants and their civilian supporters have no right to liberty at all during a war with the detaining power.

To claim otherwise is to renounce the US Constitution in favor of bigotry and tyranny.Until the Boumediene Five rewrote the Constitution, foreign POWs had no rights under the Constitution or 700 years of Anglo American common law. None whatsoever. Only the laws of war apply.

You appear to have an ongoing problem distinguishing between a government's relationship with its own People and that People's foreign wartime enemies. The default in the former relationship is a government that exists that the behest of the People, while the default in the latter relationship is to kill the enemy on sight until the enemy surrenders or is completely destroyed. When an enemy surrenders, he is detained for the duration of the conflict. Thus, war by its very nature is tyrannical to the extreme toward an enemy.
 

Bart,

Ah, well that answers the question:

The sort of libertarian who believes that 13-year-old girls have rights and the citizens of foreign countries don't have rights, is a fascist who judges people on the basis of prejudice to the exclusion of the facts or the law.

...And no sort of libertarian at all under all the phony posturing.
 

Apropos of the notion of immunizing conduct based on reasonable albeit mistaken belief, it's wonderful to hear that ignorance of the law is now an excuse. I had no idea that my own ignorance of the law would serve me so well. Indeed it's hard to see that there are any crimes in this brave new world.

Ah, well. The funniest response to determinism: kick the determinist in the shins -- he can hardly complain. (Chesterton? Can't find the reference). So: I do not think those who argue for immunization based on "reasonable belief" would like to live in a world where that would fly.
 

Thus, war by its very nature is tyrannical to the extreme toward an enemy.
===
luckily, some of us are aware of the 'war-must-be-hell' crowd among the military (Curtis "Old Iron Ass" LeMay comes to mind as an exemplar), those who believe that there are, by definition, no constraints.

With the passing of the radical Bush-Cheney Administration, hopefully those people will be continually pushed to the back of the room.

Apparently, even though we elevated Petreaus, his own backbenchers continue on analogizing from the wrong types of warfare and drawing conclusions that fit with their fear-driven prejudices.
 

Mr. Obama may need a kick in the butt by civil libertarians to investigate this.
======
Just to analogize from the torture discussion on this blog, why wouldn't we subject this to a utility test, rather than fault Obama for not 'investigating'?

If they strip-searched 30 people and found actionable intelligence from one, isn't that worth it?

Put another way, we make liberty-security tradeoffs all the time, right out in the open, not top-secret. We often accept the risk(s), in order to achieve a greater ... harmony.
 

AmI wrong to have the nagging thought that things
would have been different if the 13 year old girl
had been a boy?
 

Some US captives were Tortured to Death.

See, "Homicide Unpunished," a Washington Post editorial

excerpt:

"ONE OF THE most shocking photographs from the Abu Ghraib prison in Iraq shows a grinning guard giving a thumbs-up sign over the bruised corpse of an Iraqi detainee. Subsequent investigation showed that the deceased prisoner, an Iraqi named Manadel al-Jamadi, died of asphyxiation on Nov. 4, 2003: He was tortured to death by Navy SEAL and CIA interrogators who took turns punching and kicking him, then handcuffed his arms behind his back and shackled them to a window five feet above the floor. Nine SEALs, a sailor and several CIA personnel were implicated in the killing.""Down a Dark Road," by Richard Leiby

excerpt:

"Researchers at Human Rights First have categorized more than 70 detainee deaths in the Iraq and Afghanistan wars as homicides linked to gross recklessness, abuse or torture. The findings are based largely on the military's own records, obtained through Freedom of Information Act requests, according to Hina Shamsi, an attorney for the organization.

'Murder's torture,' Lawrence Wilkerson, a retired Army colonel and former Colin Powell aide, says . . . 'Murder's the ultimate torture.'"
"Autopsy reports reveal homicides of detainees in U.S. custody" -- DOD documents published by the ACLU

excerpt:

". . . died during interrogation . . . died during interrogation . . . Manner of Death: Homicide . . . Homicide . . . Homicide . . ."Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan, by Human Rights First

Medical Investigations of Homicides of Prisoners of War in Iraq and Afghanistan, by Steven H. Miles, MD
 

Just an anecdote concurring with the original post: I heard the school’s lawyer in a brief interview with NPR and I immediately wanted to compare his quotes side-by-side with quotes from the torture defenders. To my ear, they were so similar as to be practically indistinguishable. This led me to contemplate a “trickle-down effect” of the Bush Admin’s attitudes on society at large, and especially upon its Republican Party followers. Wondered if the attorney and the school administrators at issue were Republican supporters – it is difficult to imagine a self-identifying liberal ordering or carrying out this strip-search.

As a parent of daughters who will soon be entering grade school, these events completely shocked and offended me. As a lawyer, it offends me. And they kept her confined in the office all day after the search, not letting her return to class. What is that!? It smells like false imprisonment. School is supposed to be a place children can feel safe, and confident in the good will and care of the adults around them. Instead, this girl was treated like an inmate, and certainly subjected to (a degree of) sexual abuse. These adults must have been monumental idiots, in addition to whatever other disabilities they were operating under. War on Drugs, “Zero Tolerance” gone mad indeed.
 

My previous comment a tad OT, and please pardon the formatting errors -- some "shift/return" strokes missing.
 

Charles Gittings and Amicus:

I can't wait for Bart to provide you both with at least a passing acquaintance with the Constitution and the ability to tell the difference between the People and foreign enemies attacking the People. Some of you "People" have no idea how to defend a nation.
 

Manonfyre, we live in a world that has walls and those walls need to be guarded by men with guns. Who's gonna do it? You? You, Arne Langsetmo? I have a greater responsibility than you can possibly fathom. You weep for Manadel and curse the CIA; you have that luxury. You have the luxury of not knowing what I know: that Manadel's death, while tragic, probably saved lives and that my existence, while grotesque and incomprehensible to you, saves lives.

You don't want the truth because deep down in places you don't talk about at parties you want me on that wall, you need me on that wall. We use words like honor, code, loyalty. We use them as the backbone of a life trying to defend something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide and then questions the manner in which I provide it. I would rather you just said "thank you," and went on your way. Otherwise, I suggest that you pick up a weapon and stand a post. Either way, I don't give a damn what you think you are entitled to.
 

well, it's nice to know, if nothing else, that charles can apparently either paraphrase or perhaps even quote from "a few good men" without attribution.
 

It was a paraphrase (unless "Arne" was the one gagged and killed in that movie, not just my dream last night).
 

Nod to Charles:

You proffer your acceptance (perhaps even your own complicity in the commission) of torture of captive prisoners -- including torture-murder -- as "life-saving" and apace with your concept of "honor, code, loyalty." You insinuate your role as some serviceman/operative[?], standing armed guard somewhere on some wall.

Me, sir, I would be less offended to learn that you were determined to personally spit [let's be civil] on the graves of every service person that has ever given their "full measure" in defense of this country.

"Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause… for by such conduct they bring shame, disgrace and ruin to themselves and their country."

~ George Washington, Sept. 14, 1775
[Apologies to Mr. Levinson and readers for the "personalization" and digression of this thread. Invariably, it is kind of a tradition here, however.]
 

manonfyre:

Luckily for Gen. Washington, he never had to contemplate millions of Americans being killed in an instant.
 

Charles:

As have all our Presidents since Truman, and others to come, the President who signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment did.

(BTW: History will show that this same man, along with his supporters and acolytes, did more to fundamentally endanger the lives and security of American citizens than all the terrorist attacks ever perpetrated against the United States, combined. How, you ask? By eviscerating The Environmental Protection Agency; reversing course on the Clean Air and Water Acts; and by launching this era of "deregulation," culminating in complete "regulatory capture" under Bush, Cheney, Delay, et al. Google: "endocrine disruptor," for starters. What's in your drinking water, and your children's blood, brain, and fat cells? See also: "biomonitoring" or "body burden." Again, apologies. The tangents are inescapable.)

I'll grant that blood lust can be terribly distracting, but let's not lose perspective here, eh?
 

Yes, I won't lose perspective. Truman, for instance, dropped atom bombs killing 200,000 "innocent" civilians. You were saying something about the lesser-included offence of "torture"?
 

test
 

Why the quote marks around "innocent" in your reference to the murder of 200,000 Japanese civilians by atom bomb detonation? Do you suggest these noncombatants were actually guilty of something that warranted their incineration?
 

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