Constitutional Law

Lucy van Pelt consistently invited Charlie Brown to kick a football. She held it to be kicked, but then would withdraw the ball.

Similarly, a few times recently, the National Security Archive complained in federal court that Lucy van Pelt -- I mean the CIA -- had unlawfully refused its request to be classified as a representative of the news media under the federal Freedom of Information Act, seeing that such representatives only need to pay for duplication costs of FOIA-requested documents, rather than needing to pay any fees to process the FOIA request. 5 U.S.C. § 552(a)(4)(A). Each time that the National Security Archive complained, the CIA would respond to the court with an apology, saying that such a  classification should not be denied to the National Security Archive. Then, with the federal court's back barely turned, the CIA would repeat its actions of refusing to grant news media representative status to the National Security Archive, and the tango continued, until November 4, 2008, when U.S. District Judge Gladys Kessler put the brakes on such nonsense from the CIA, and ordered that it be stopped.

Curiously Judge Kessler's opinion does not give a definition of "representative of the news media," because the parties agreed that the National Security Archive does so qualify. National Security Archive v. CIA. _ F.Supp.2d (D. D.C. Nov. 4, 2008).

In any event, hopefully the Bush II administration's contempt for the FOIA will not spill into Barack Obama's presidency. Jon Katz. 

"Al-Qaida terrorists still plot to inflict catastrophic harm on America ... [Barack Obama is] worried that someone won't read them their rights." Sarah Palin at the Republican National Convention (Sept. 3, 2008).

As much as I am not thrilled about Barack Obama -- and I am not thrilled at all about John McCain -- McCain blundered abysmally never to have rejected Palin's above-quoted mis-hyperbole about the essential right of detained criminal suspects to be read their rights to remain silent and to an attorney. Palin's RNC convention speech was scripted, with no impromptu words, and it is doubtful that Palin's above quote got approved without McCain's okay.

Remember your own rights today on Election Day: You have the right to vote with your Diebold election machine or dimpled chad producer, to tell Palin and McCain what you think about their trying to score political points through their lampooning Barack Obama as more for protecting criminal suspects' decades-long rooted rights than they will ever be.  Jon Katz. 

As I rise early on October 4, 2008, to get to the polls on the way to court, I will still be kicking myself for my own role, through inaction, in our having a two-party-dominated underdemocratic/barely democratic Tweedledum-Tweedledee political system. The tealeaves do not show that Obama will be any better a president than Bill Clinton was, and I was not overly fond of Bill, who maintained a government that was overly militaristic, overly-prosecutorial, and insufficiently protective of civil liberties. I voted for Bill Clinton, as I now vote for Barack Obama, as a less scary alternative to the other major party's opponent.

Just as with George Bush, II, a president McCain will feel an obligation to pay further homage to the party's morally conservative (an oxymoron) right wing, beyond his blunder of naming the woefully inexperienced, incapable Sarah Palin, who will be less of a friend to civil liberties than will John McCain.

The most lasting damage of a McCain presidency will be his lifetime appointments to the Supreme Court, and his dozens more annual lifetime judicial appointments to the lower appellate and federal trial courts. The next president will likely fill one to three vacancies for the Supreme Court. Justice John Paul Stevens -- Ford-appointed but today comparatively one of the Court's strongest friends of civil liberties -- is eighty-eight, and will be nearly ninety-three when the next president leaves office; it is very doubtful that Stevens will stay on the bench as long as that. Justice Ruth Bader Ginsburg is seventy-five and will be seventy-nine when the next president leaves office. Justice David Souter on the one hand is only sixty-nine, but on the other hand is reportedly antsy to return to New Hampshire.

If you are not scared yet, consider this for post-Halloween terror: The three youngest justices are three of the four most rightwing on civil liberties issues, those being Justice Clarence Thomas, 60, Justice Samuel Alito, 58, and Chief Justice John Roberts, 53. That is no typo; Chief Justice Roberts is rightwing, 53, and will be at the Supreme Court's helm a few more decades. The final member of the Supreme Court's rightwing quartet is Justice Antonin Scalia, who is only 72, loves his job, and shows no signs of going anywhere for at least two more presidencies. 

Even though Chief Justice Roberts may be a mensch off the bench, and has even been known personally to pass out Halloween candy to trick-or-treaters, that does not change the severe damage that he and the other Supreme Court rightwingers inflict on the Constitution each month.

A president McCain likely will nominate someone no less conservative than the Supreme Court's current right-wingers. If you think we currently have too many abysmal Supreme Court opinions, just wait and see what will happen if a president McCain names Justice Stevens's replacement after eight years of Bush, II, nominations to the federal courts.

Election Day is your opportunity to mobilize against further right-wing lifetime federal judicial nominations, not only to the Supreme Court, but to the lower federal appellate courts and trial courts, too, which apparently number in at least the dozens each year.

Sooner rather than later, of course, we need to break free from the two-party dominated system that overtakes the nation's psyche to the point that one wonders whether schoolchildren realize that the nation's political system is not limited to two parties. As Nader's running mate Matt Gonzalez asks, "What do they [the Republicans and Democrats] have to do to lose your vote?" Had Ralph Nader not run for president in 2000, Al Gore would have beaten George Bush, II. Nader knew he would not win the presidency, but also had a powerful message that most Democratic and Republican candidates and officeholders are more fundamentally alike than they are different, maintaining most of the status quo of the government-military-industrial complex. The only way to break out of the woefully underdemocratic two-party system is to risk electoral victories by the worst major candidates on the road to a truly multi-party system. Jon Katz.

In 1981, I started college a few miles outside of Boston. I very much enjoyed the subway system. Barely two stations were designed alike. Some stations had elevated platforms to get on the trains, and at least one other station had the opposite engineering. Some stretches of tracks went underground, and others aboveground. I always got a kick out of reading some of the station names, including Alewife, Mattapan, and Shawmut.

In 1985, I started a year of work in the belly of the capitalist beast. It was the first time in my life that I daily rubbed elbows with as vast a cross section of people, most of them running from fascinating to interesting on lesser levels. Fed up with over two months of train commuting from what seemed like my middle-of-nowhere hometown, I signed a lease for a shoebox single residence occupancy apartment at the corner of Lexington and 23rd Street. I think Paul Schaeffer lived there, or at least I saw he found an opportunity early one Saturday evening to eat a slice of cheesy pizza at Zips's on the ground floor of my eventual apartment building.

After signing my lease -- wondering why I had just agreed to pay over $500 for the privilege of having my knees almost touch the wall when sitting on the toilet in a kitchenless tiny dormsize apartment -- I went to catch a subway train uptown. A man calmly walked onto the tracks, and calmly waited for the next train to arrive, facing his impending suicide. I freaked. I told the tokenbooth clerk what was happening, and she barely acknowledged me, as if I had just escaped from one of Bellevue Hospital's padded rooms. I bolted out of the station, selfishly trying to avoid hearing this man's screams, feeling powerless to convince him to leave the rails. I saw a nearby cop car -- before I had become so cynical of cops -- and told them. They also looked at me like I was nuts, perhaps nuts that I cared enough to tell them, or nuts to think I could change anything, or nuts that I had not just minded my own business and stayed there to be in the midst of a man flattened out by a subway train. After a business trip took me away from the neighborhood for six weeks, I returned and asked a different tokenbooth clerk what happened to the man. She said he was taken to a hospital's psychiatric ward; or was that a subsequent man who had descended to the rails to await a gruesome death?

Seven months later, I was returning to my apartment during rush hour. Two or three people jammed themselves onto the subway car with a full-sized couch. That was preferable to what came two months thereafter, when my friend and I ran to the next subway car, after we realized that the reeking odor overcoming us was vomit saturating a standing rider's beard. Sophomorically insensitive, we laughed our heads off about it after our escape.

Then I came to Washington, D.C. in 1986 for law school. The subway cars were free of graffiti, had nobody standing by the door drenched in puke, and had nobody shoving large furniture items onto the subway, which would have been caught by the stationmanagers in the first place. Each subway station and subway car looked pretty much immaculately the same as the next one. Each underground stop choked its visitors in huge slabs of curved concrete. Whatever Washington's subway system's planners had in mind, the system then, as now, reflected the excessive facelessness and heartlessness of the surrounding overgrown government bureaucracy.

In October 1999 I was hopping on the subway in the shadow of the World Trade Center. Two years later, murderers decimated the towers. Earlier that year I met with a prosecutor in the Pentagon to review discovery pending a trial date; to this day, I do not know if the murderous September 11 plane hit that part of the Pentagon.

On my first post-September 11 trip to Manhattan, Grand Central Station had been transformed into a police state, with cops carrying the same sort of scary submachine guns that I thought were reserved for such other places as Singapore's Changi airport under that city-state's tyrannical government. Then, the New York City government added random searches of subway users. The Boston subway and bus lines did the same, at least during the 2004 Democratic national convention. Apparently not wanting to be on the sidelines, the Washington Area Metropolitan Transit Authority has gotten in on the act, not only on the subway line, but on busses, too. Such intrusions make the puke smell on a New York subway car in 1986 and the urine stench in a Boston subway walkway in 1983 seem like childsplay.

And what about my two-year-old boy, who loves the subway and all other trains, and who darts towards the nearest subway elevator and escalator to take a ride? What kind of lesson to him is the garrison state that the subway system has become, other than a lesson of fear? How can I expect not to upset him tremendously if I explain that if we do not exercise our right to privacy we will lose it, and then refuse to enter the subway system? Were mine a life lived alone, it would be very easy to avoid the subway and buses. Many will find little financial choice to avoid the Metro system, considering how much less expensive it is to ride Metro than to own or drive a car.

What nerve does the WMATA have to impose such a drastic change as random subway and bus searches, apparently with no notice or comment period for the public to put in its two cents in advance? Now that the public knows of this privacy-violating development, who will stand up against it?

Thanks certainly go to my friends at Flex Your Rights -- the producers of the Busted video visually linked to every page of this blog -- who yesterday afternoon were involved in pursuing a demonstration in Dupont Circle against the random searches (see the flyers they ask people to help hand out concerning the searches). Thanks also to Flex Your Rights for posting a webpage on your rights in refusing D.C. Metro random searches, which looks right on target, except that as to FYR's recommendation about not giving one's name or identity to the cops, the Supreme Court's Hiibel case makes clear the Catch-22 of refusing at least to give the cops one's name, in the event a court later determines the cops had reasonable suspicion to suspect the person was committing a crime. However, one would hope that no court will find the existence of reasonable police suspicion when the person merely leaves to avoid a random subway or bus search.

My search of Metro's website and Google indicates that Metro never instituted a public notice and comment period before announcing the random search program. That is foul in a society that purportedly has government governing at the consent of the governed, and where Congress, federal agencies, and the states where Metro runs (D.C., Maryland and Virginia) ordinarily provide the public notice and comment opportunities for proposed legislation. Billions of tax dollars get poured into the Metro system. Why should my tax dollars go into a system that blatantly violates the Fourth Amendment and privacy with random searches?

Metro's website has an overly brief FAQ page (and just about nothing else on its website) about the random search approach, which claims the program is Constitutional based on the Second Circuit's denial in MacWade v. Kelly, 460 F.3d 260 (2006), of a challenge to the New York City subway's random search program and an unreported ruling from the U.S. District Court in Massachusetts, on a challenge to Boston's subway and bus search program during the 2004 Democratic presidential convention (did the bad karma of the failure of John Kerry and his campaign to stand up against such searches feed into his electoral loss?). American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., 2004 U.S. Dist. LEXIS 14345 (D. Mass. July 28, 2004) (unreported). However, the foregoing rulings are from outside jurisdictions, and are therefore not controlling on the courts where the D.C.-area Metro runs. Finally, the D.C.-area Metro search program includes buses,which MacWade does not involve, and which American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth. only involved during the few days of a presidential convention. Such a distinction might at least lead to a court victory against random Metro bus searches, and hopefully a wider victory than that. I have offered assistance to my local ACLU for a court challenge. The ACLU probably will find no shortage of qualified pro bono attorneys for such a lawsuit, and the local affiliate already has an excellent crop of in-house lawyers. Jon Katz

The Silver Spring, Maryland, YMCA has become an eerie place of sorts. On September 11, 2001, I was working out there before starting the workday. On my way to the locker room to the office, I saw the television playing the horrifying footage of the World Trade Center attack and collapse, and learned that the Pentagon -- just about ten miles away -- also had been attacked.