June 25, 2009

supreme court declares strip search in school illegal

Every once in a while, this Court surprises.

Court says strip search of child illegal

By JESSE J. HOLLAND
The Associated Press
Thursday, June 25, 2009 10:47 AM

WASHINGTON -- The Supreme Court ruled Thursday that a school's strip search of an Arizona teenage girl accused of having prescription-strength ibuprofen was illegal. The court ruled 8-1 on Thursday that school officials violated the law with their search of Savana Redding in the rural eastern Arizona town of Safford.

Redding, who now attends college, was 13 when officials at Safford Middle School ordered her to remove her clothes and shake out her underwear because they were looking for pills - the equivalent of two Advils. The district bans prescription and over-the-counter drugs and the school was acting on a tip from another student.

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Justice David Souter wrote in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."

But the court ruled the officials cannot be held liable in a lawsuit for the search. Different judges around the nation have come to different conclusions about immunity for school officials in strip searches, which leads the Supreme Court to "counsel doubt that we were sufficiently clear in the prior statement of law," Souter said. "We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case," Souter said. The justices also said the lower courts would have to determine whether the Safford United School District No. 1 could be held liable.

A schoolmate had accused Redding, then an eighth-grade student, of giving her pills. The school's vice principal, Kerry Wilson, took Redding to his office to search her backpack. When nothing was found, Redding was taken to a nurse's office where she says she was ordered to take off her shirt and pants. Redding said they then told her to move her bra to the side and to stretch her underwear waistband, exposing her breasts and pelvic area. No pills were found.

A federal magistrate dismissed a suit by Redding and her mother, April. An appeals panel agreed that the search didn't violate her rights. But last July, a full panel of the 9th U.S. Circuit Court of Appeals found the search was "an invasion of constitutional rights" and that Wilson could be found personally liable.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented from the portion of the ruling saying that Wilson could not be held financially liable. "Wilson's treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it," Ginsburg said.

The case is Safford Unified School District v. April Redding, 08-479.

According to just about every court watcher out there -- and, to some extent, even Justice Ginsburg, in a recent interview -- the Court seemed ready to rule that the search itself was lawful and reasonable. That it not only came down on the other side, but did so quite emphatically is almost shocking.

That Thomas dissents from this decision is, somehow, no surprise. That he does so alone, without company from Scalia or Roberts, is startling. The two of them have ever given the state a great deal of leeway in such matters. One wonders what persuaded them otherwise in this case.

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June 16, 2009

love and anger

Editorial - A Bad Call on Gay Rights - NYTimes.com

The Obama administration, which came to office promising to protect gay rights but so far has not done much, actually struck a blow for the other side last week. It submitted a disturbing brief in support of the Defense of Marriage Act, which is the law that protects the right of states to not recognize same-sex marriages and denies same-sex married couples federal benefits. The administration needs a new direction on gay rights.

Earl Ofari Hutchinson: Obama's Marriage Defense Shouldn't Surprise or Anger Anyone

"I will tell you that I don't believe in gay marriage."

"I believe in civil unions but it should not be called marriage."

Then Democratic presidential candidate Barack Obama said that during a campaign stop in Nelsonville, Ohio a day before the Super II Tuesday primary in March 2008. The great puzzle then is why so many are so hot at President Obama for backing the Defense of Marriage Act. He has not backed a step away from his Ohio campaign stump words.

His unshakeable personal, political and legal belief is that the only marriage that can be called marriage is between a man and a woman. This has absolutely nothing to do with his solid, and at times outspoken, tout of anti-discrimination, civility, and just plain human respect for gay rights. He has backed that in speeches and legislation 18 times before he grabbed the White House.

This still doesn't change his firm belief that marriage is marriage only when it's between a man and a woman. Gay groups, the mayors of Los Angeles and San Francisco, and some congresspersons, can scream at him to withdraw the Justice Department's brief filed seeking the dismissal of the legal challenge to the DOMA in a federal court in California. They can bash him as a flip flop and a betrayer of his campaign promises on gay rights. This still ignores the bitter truth that candidate Obama and now president Obama has been the paragon of consistency, even honesty, in opposing same sex marriage. This has nothing to do with politics, but his personal belief layered over with a tinge of religious interpretation, since he's cited conflicted passages from the Bible, to square his support of gay rights with his opposition to legalizing same sex marriage.....

Disappointed? Well, yes, of course. Surprised? Not so much at the defense -- though, really, when a candidate promises one thing, then does completely the opposite, why wouldn't you be entitled to be at least a little surprised? Anger? Well, of course. Not so much at the fact of the defense, which would have been bad enough, but at the method and the language. If you are not entitled to be angry when someone goes above and beyond what would be required, and deliberately and knowingly causes you difficulty and pain, when are you allowed to be angry?

And for the record, the administration's contention that it's required to defend all valid federal laws is a flat out lie. States and the federal government have declined to defend laws that they thought should be overturned in the past -- witness California declining to defend Proposition 8. It's infrequent, true, and it's quite likely that the administration wouldn't have gotten away with it if they'd tried to back away from defending the law; the federal courts frequently direct the government to make a defense in such situations. But let's take the administration at it's word; perhaps all of these lawyers, educated in the niceties of federal law and very well practiced in same, somehow forgot everything else they knew and somehow thought that they were in fact obliged to defend the law. If the administration truly felt that the law should fall, they could then have offered a very minimal defense. Instead, they dragged out many long discredited arguments and vile calumnies to make its case.

It is possible -- perhaps even probable -- that those arguments were dragged out, in the Ninth Circuit in particular, precisely because they were such dreadful arguments for the law. The Ninth being what it is, while the law is likely to be upheld in Orange County (it being what IT is), DOMA's likely to be struck down at the Court of Appeals level, and they will not be kind to those arguments. Unfortunately, the Ninth being what it is, and having a perfectly dismal record of having its decisions sustained at the Supreme Court level, The Court will almost certainly reverse the decision to strike and uphold the law -- it being what IT is. (Kennedy's Lawrence majority aside, it strikes me that it would be difficult to cobble together a 5-4 majority to strike DOMA from this or a near-future court; even if Sotomayor votes to strike the law, she only replaces Souter's vote in Lawrence. Given that he performed some logical conniptions to make Lawrence not apply to marriage laws, I don't think Kennedy himself would be in a majority to strike DOMA. [Though, given his alleged respect for stare decisis, it would theoretically be possible to get a fulminating and acid support from Scalia, which would be vastly entertaining. He might be just crotchety enough to force the others to live with the logical consequences of Lawrence. Kind of doubt it, though.] But I digress.) This administration is, if nothing else, extraordinarily tactical in its methods. (Sometimes I think it's nothing but tactics, without actual substance or plans for follow-through. But I digress.) If it can get the courts to do its dirty business for it, why not? If the courts strike DOMA down, then the administration will have to expend no political capital in getting Congress to repeal the law. (Getting Congress not to turn around and pass another version of the law almost immediately, however, will be another thing entirely. Between the Republicans and the Blue Dog Democrats, it would pass rather easily, and then Mr President would need to make the theoretically easy decision not to sign the new law. It would not, I suspect, pass with a veto-proof majority. The question is, if that all happens before the next election, would candidate Obama be willing to rouse up the conservatives on that issue by not signing? I suspect he would not, especially since, as Hutchinson notes, in somewhat different language, Obama does not really believe that gays and lesbians are humans entitled to the same rights and privileges that he himself entertains.)

In any event, it appears that the decision to defend DOMA is having an interesting effect. A DNC fundraiser may be running into some problems, with a few of its headliners already pulling out. It will be interesting to see how much the administration's tactics, if such they be, cost it and others in the party.

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June 03, 2009

"new hampshire says yea"

UnionLeader.com - New Hampshire news, business and sports - Same-sex marriage becomes law in NH - Wednesday, Jun. 3, 2009

By TOM FAHEY
State House Bureau Chief

Concord – Gay marriage legislation became law in New Hampshire this afternoon. Gov. John Lynch signed the bills just after 5:20 p.m. before dozens of enthusiastic supporters of same-sex marriage. New Hampshire's law takes effect Jan. 1.

HB 73, compromise legislation demanded by the governor, was passed by a vote of 14-10 in the Senate and 198-176 in the House today. HB 73 (text), was an add-on to the gay marriage bill itself, HB 436 (text), and to HB 310 (text), which made technical changes to the main bill. HB 73 clarifies the rights of religious organizations and their employees to refuse to participate in same-sex marriage ceremonies or celebrations. It states that religious groups have exclusive control over doctrine, teaching and beliefs on who can marry within theirfaiths....

And now Rhode Island stands alone in New England, the only state in the region not allowing same-sex marriage.

That said, that's probably it for a while. New York seems profoundly conflicted about what to do -- or, to be more precise, one of its chambers is devoutly and most sincerely avoiding a vote on the issue -- and it's not really on the radar for any other states at the current time. Even if it were, it's hard to imagine a place where it could be expected to pass right now. Despite Nevada's legislature approving a domestic partnership law over its governor's veto, the rest of the West offers a most forbidding and more or less Republican landscape. (Granted, an unusually populist Republican landscape, on the whole.) The Midwest, Iowa aside, doesn't seem terribly inclined to consider the issue; Illinois has a domestic partnership law stalled in committee, and I don't think Minnesota or Wisconsin has anything coming up, and I can't quite imagine that it would pass in either state anyway. And the South ... well. Yes. Quite. Anyway, there doesn't seem to be anything on the immediate horizon.

Though, I have to say, even if nothing else happens in the next year or so ... it's been quite the six months, hasn't it?

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May 26, 2009

california says nay ... again

To the surprise of practically nobody.

Court upholds Prop. 8 but lets marriages stand (sfgate.com)

California voters legally outlawed same-sex marriage when they approved Proposition 8 in November, but the constitutional amendment did not dissolve the unions of 18,000 gay and lesbian couples who wed before the measure took effect, the state Supreme Court ruled today. The 6-1 decision was issued by the same court that declared a year ago that a state law defining marriage as the union of a man and a woman violated the right to choose one's spouse and discriminated on the basis of sexual orientation.

Prop. 8 undid that ruling. The author of last year's 4-3 decision, Chief Justice Ronald George, said today that the voters were within their rights to approve a constitutional amendment redefining marriage to include only male-female couples. Justice Carlos Moreno, in a lone dissent, said a majority should not be allowed to deprive a minority of fundamental rights by passing an initiative.

The justices ruled unanimously that Prop. 8 was not retroactive and that gay and lesbian couples who relied on the court's May 2008 ruling to get married before the Nov. 4 election will remain legally wed.

Prop. 8, which declared that only marriage between a man and a woman is valid or recognized in California, passed with a 52 percent majority after an intense and expensive campaign. Sponsors, mainly affiliated with Christian conservative groups, raised nearly $40 million for the measure and opponents more than $45 million - combined, a record for a ballot measure on a social issue anywhere in the nation.

The ruling, the court's third major decision on same-sex marriage in five years, may be the last word from the state's legal system on the issue. But the matter is far from settled in the political arena. Gay-rights advocates, anticipating the decision, have discussed putting another constitutional amendment on the ballot in 2010 or 2012 to try to repeal Prop. 8....

Mind, it was mildly surprising that the court was that strongly against declaring the proposition to be in fact a revision. One would have thought that it would be closer than that, somehow.

And people are planning already to try to take it back to the ballot box in 2010 or 2012. One does wonder what they expect to be different, or what they plan to do to produce a different outcome. And one wonders if the leaders of the various groups have any plans for preventing the spectacularly ugly racial divide that erupted after the proposition revoked the right to marry the first time. What will they do, if and/or when, a majority of the voters of California say, "No, really, we meant it. WE DON'T LIKE YOU. WE DO NOT THINK YOU ARE OUR EQUALS. YOU ARE NOT ENTITLED TO EQUAL RIGHTS."

What will they do?

And I wonder what will hit the ballot box first: an amendment to repeal Proposition 8, an amendment/proposition to strip recognition from existing gay marriages (and there will be one) ... and wouldn't it be just glorious if those appeared on the same ballot? California would have the chance to be really emphatic about just how much it doesn't like its gay citizens.

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May 15, 2009

the admimistration vs the public interest

Obama Reverses Pledge to Release Photos of Detainee Abuse (washingtonpost.com)

By Scott Wilson
Washington Post Staff Writer
Thursday, May 14, 2009

A month after making public once-classified Justice Department memos detailing the Bush administration's coercive methods of interrogation, President Obama yesterday chose secrecy over disclosure, saying he will seek to block the court-ordered release of photographs depicting the abuse of detainees held by U.S. authorities abroad. Obama agreed less than three weeks ago not to oppose the photos' release, but he changed his mind after viewing some of the images and hearing warnings from his generals in Iraq and in Afghanistan that such a move would endanger U.S. troops deployed there.

"The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals," Obama said yesterday. "In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in danger."

Civil liberties and human rights advocates said the reversal would serve to maintain the Bush administration's legacy of secrecy. Kenneth Roth, executive director of Human Rights Watch, said Obama's shift was "deeply disappointing." "Even given that the photos will undoubtedly generate outrage in the region, the best way to dampen that outrage is to hold those responsible accountable," Roth said.

The photos were assembled as part of about 200 criminal investigations conducted before and after the disclosure in 2004 of widespread prisoner abuse by U.S. troops at Abu Ghraib, the former Iraqi prison that the U.S. military turned into a detention and intelligence-gathering center. Previously released pictures taken at Abu Ghraib -- depicting Iraqis stacked naked in piles and pyramids, tormented by dogs, chained to beds and placed in other painful or humiliating positions -- enraged many in the Middle East and became symbols of the deeply unpopular U.S. invasion and military occupation of Iraq. But no commanding officers or Defense Department officials were jailed or fired in connection with the abuse, which the Bush administration dismissed as the misbehavior of low-ranking soldiers.

The American Civil Liberties Union filed a Freedom of Information Act request in October 2003 for all photographs pertaining to U.S. military detention operations. It filed a lawsuit the following year after that request was denied. Last September, the U.S. Court of Appeals for the 2nd Circuit ordered the photographs released. The Bush administration challenged the ruling, but the court denied that petition in March.

Amrit Singh, the ACLU lawyer who argued the case, said the court ordered the release of 21 photos taken in Afghanistan and in Iraq outside of Abu Ghraib. She said 23 other photos taken in undetermined locations are part of the lawsuit. Civil liberties advocates say that as many as 2,000 other photos could be subject to release. "There's a substantial number of photographs about which we know nothing," Singh said. "All we know is that some of them depict prisoner abuse."

In an April 23 letter to Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York, the Obama administration stated that "the parties have reached an agreement that the Defense Department will produce all the responsive images by May 28, 2009." Press secretary Robert Gibbs said yesterday that Obama had not viewed the photos at that time. Last week, Obama gathered White House lawyers and informed them that he did not "feel comfortable" releasing the photos because doing so could provoke a backlash against U.S. troops, administration officials said....

You know ... in general, I like our current president. And, if nothing else, I somewhat prefer him to the excesses of the previous administration.

But I am strongly beginning to wish he'd just think before he commits to something, and decide beforehand if he's truly willing to follow through. Any person with a quarter of a functioning brain cell could have told him that these photos would get people angry about the abuse all over again. I'm sure that several people actually did. No doubt there was something in the new set of images that shocked or startled him enough to make him change course. But of course, he can't say that, because that would be a public admission that there's more there there, so to speak.

But one congressional staff member, speaking on the condition of anonymity because of the sensitivity of the photos, said the pictures are more graphic than those that have been made public from Abu Ghraib. "When they are released, there will be a major outcry for an investigation by a commission or some other vehicle," the staff member said.

And that, I suspect, is the key behind this recent reversal. He has been desperately fighting to avoid any sort of investigation, for whatever reason. He doesn't want his agenda to be sidetracked by high-visibility investigations, and he's got a lot more immediate issues to contend with. He doesn't want to expend any of a steadily and rapidly declining pool of political capital to deal with the situation. Moreover, investigating abusive interrogations will expose in a more thorough way the CIA's rendition network and its affiliated semi-secret and secret prisons. It will throw the heretofore strangely ignored prison at Bagram and its alleged abuses into sharp relief. The potential for all of this to mushroom into a massive investigation of not only the CIA but also of the armed services responsible for guarding these prisoners is not inconsiderable.

That said, the desire of our highest elected official to avoid investigating known and suspected wrongdoing is unseemly. It is, in and of itself, wrong.

Tribunals to Return, Detainees to Have More Rights (washingtonpost.com)

By Carrie Johnson and Peter Finn
Washington Post Staff Writers
Friday, May 15, 2009 10:28 AM

President Obama is expected to announce today that he intends to keep military commissions to try some detainees at the military prison in Guantanamo Bay, Cuba, but with greater legal protections for defendants, an administration official said last night. The administration will also seek a second suspension of legal proceedings at Guantanamo so it can refine the system, the official said. Obama had received a 120-day suspension from military judges in January.

Obama's announcement will come a day after Attorney General Eric H. Holder Jr. assured Republican lawmakers that the Justice Department would not release any detainees whom he considered dangerous onto U.S. soil. Holder, appearing at his first oversight hearing since taking office three months ago, told members of the House Judiciary Committee that no final determinations had been made about how to handle 241 men being held at Guantanamo Bay. "We're not going to do anything, anything that would put the American people at risk -- nothing," Holder said.

The fate of the detainees has become a topic of intensifying interest as the Obama administration's self-imposed deadline for closing the prison draws nearer. Officials have until January to shutter the facility, but federal judges hearing legal petitions from the men are growing weary of waiting for their release....

This, however, is a more unforgiveable reversal of position. After having argued and campaigned on the issue that our criminal justice system is adequate to this issue, having managed it several times previously, Obama now decides that military tribunals are sufficient to the cause, thereby guaranteeing yet another round or ten of court battles as the prisoners argue, again, that they are not. And, in all likelihood, not only will courts agree with them, but they will be rather short with an administration that is defying decisions on this very issue handed down to its predecessor. As far as I can tell, this is a consequence of his having promised to close Guantanamo, only to realize that the only available choice with the current prisoners is to release them into the US -- and Congress is having snit fits about that, despite there being, as far as we know, fairly little reliable evidence that most of these people did anything aside from being in the wrong place at the right time. (Of course we don't know anything; neither the Bush administration nor this one has any intention of letting us know anything about these people.)

I can appreciate that this administration has had a more fraught transition than most. Two wars and a worldwide economic collapse would tax anyone. But at some point, they need to decide whether or not they really want to be known as the Democrat version of the Bush administration on these and other issues. Because if they do, we might as well have picked McCain.

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