A Stitch in Haste

As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website

The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84

I previously wrote:

To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.

The Supreme Court ruled:

The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.

In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.

---

I previously wrote:

If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

The Court ruled:

Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.

Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:

It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

That last part was the topic of today's monumental ruling.

And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.

It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.

The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.

(Please see update below.)

By now you have likely seen the utterly outrageous reports that the District of Columbia, most recently known for holding the Second Amendment in absolute contempt, has now upgraded — or downgraded, depending on your nomenclature — to likewise trampling other parts of the Bill of Rights:

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate "Neighborhood Safety Zones." At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn't live there, work there or have "legitimate reason" to be there will be sent away or face arrest, documents obtained by The Examiner show.

Some hasty stitches:

--The right* of otherwise law-abiding citizens to be in and move through public spaces, with or without identification and with or without a "legitimate reason," is well-settled law. See Papachristou v. Jacksonville, 405 U.S. 156 (1972), Brown v. Texas, 443 U. S. 47 (1979), and especially Hiibel v. Nevada 542 U.S. 177 (2004), (Breyer, J., dissenting). (*I would be just as happy to use the term "privilege and immunity," but that doesn't get you very far, no pun intended.)

--The requirement that one's purpose be "legitimate" is of course unconstitutionally vague. "Legitimate" — to whom? By what standard? Is walking one's dog a "legitimate reason"? Proselytizing on behalf of the Mormon faith? Collecting bottles for the nickel deposits? Taking your kids to a blighted area to "see how the other half lives"?

--Suppose I show up at such a checkpoint and simply declare: My "legitimate reason" is my desire to exercise my First Amendment right not to need a legitimate reason. Do I win because I have a legitimate reason or because I don't need one?

--Speaking of unconstitutional vagueness, what will the criteria be for determining which neighborhoods deserve this Checkpoint Charlie nightmare? Will the designations be subject to race-based or other discrimination challenges, much like our statutory and judicial approach to fighting gerrymandering or busing?

--Going back to the Second Amendment and the pending decision in District v. Heller: Most libertarians wasted little time in debunking the hopelessly silly "Congress has plenary Article I authority over the District" canard by asking whether Congress could, hypothetically, repeal the First Amendment within the borders of the District. Who knew that the District would actually consider trying it? See also the (just as hopelessly silly) claim that the federal government can authorize, without constitutional amendment, full voting representation for the District in Congress.

(Via Hit & Run.)

---

UPDATE: Subsequent media accounts now clarify that the checkpoints will be vehicular, not pedestrian. That changes neither the outrageousness nor the unconstitutionality of the program — only the precedents with which to analyze the proposal. Indianapolis v. Edmond, 531 U.S. 32 (2000) is both clear and directly on point: Vehicle checkpoints, without individualized suspicion and established merely for "general crime control purposes," violate the Fourth Amendment. Accord, U.S. v. Lidster, 540 U.S. 419 (2004). My void-for-vagueness analysis is also still entirely applicable here, as would be any requirement that passengers in the vehicle produce ID (the driver would of course be required to produce a valid drivers license).

I hate it when the last thing I read at night is something mind-bogglingly stupid:

A suspected pipe bomb exploded at the federal courthouse in downtown San Diego early this morning, shattering a glass entryway and damaging the lobby, authorities said. No injuries were reported.
...
"It's too early to tell if it's terrorism-related," [FBI spokesman Darrell] Foxworth said. "It does not appear to be right now."

Huh? How can "bomb + courthouse" not equal "terrorism"?

News flash for the FBI: Anyone with a bomb and a target is a terrorist. End of discussion.

Good night.

Much cyber-ink is being spilled on the question of John Yoo's continued employment at U.C. Berkeley's law school, Boalt Hall; I first noted it in passing here.

Boalt's dean, meanwhile, issued a lengthy statement on Yoo that was half "Ford pardoning Nixon," half "Pilate washing his hands."

(Not only is Yoo tenured, but Boalt, as part of a public university -- i.e., the government -- is required to extend certain due process rights above and beyond what a tenured professor at a private law school would enjoy.)

Here was my brief foray into the discussion:

The dean fails to address the underlying question: Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?

Reasonable minds may disagree on that question, but no reasonable person is entitled to assert that "tenure," "due process" or "the First Amendment" have anything to do with the answer.

Some commenters misinterpreted that to mean that I advocate stripping Yoo of his legal protections. I of course neither said nor advocated anything of the kind. My point was that the question of "Yoo at Boalt" is really two questions: (1) should he be teaching law school students, and (2) if not, and only if not, then can he be removed? I find Question (1) to be infinitely more important than Question (2), but that is not the same as asserting that Question (2) can be completely ignored.

The most comprehensive response I've seen to Boalt's dean, Chris Edley, comes from Scott Horton:

I agree with Dean Edley on two key points. First, John Yoo is entitled to his legal views, however eccentric, radical and harmful to our democracy. The academic community benefits from the presence of the philosophical outlier. It sharpens debate, and can furnish us with a reminder of the fundamental values which the outlier disparages.

That argument only goes so far. There is a line past which "philosophical outlier" becomes "dangerous nutjob." An advocate of leeching has no business on a medical school faculty, an astrologer has no business on an astrophysics faculty, an alchemist has no business on a chemistry faculty -- their presence does not "sharpen debate," it just wastes resources, embarrasses the institution and achieves the exact opposite of disseminating "knowledge" -- properly defined. (What part of "higher" in "higher education" could possibly extend to leeching or astrology?)

Is Yoo the jurisprudential equivalent of an alchemist? Perhaps reasonable minds can disagree, but that is simply not the same thing as suggesting that the question is irrelevant. It is not.

Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be "clean." He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe.

Telling the client what he wants to hear, instead of what he needs to hear, is the fastest way to a "C" in a first-year legal writing class. Deliberately failing to cite contrary authority is the fastest way to an "F." Advocating the commission of a crime -- including a war crime -- is the fastest way to disbarment.

So I ask again: "Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?"

The torture memos were not an episode of The Tudors, and John Yoo was not Cardinal Wolsey -- saying whatever needed to be said, no matter how preposterous, to try to secure Henry VIII his divorce from Catherine of Aragon -- in clear defiance of the law, common sense and common decency. This is not the Sixteenth Century, no matter how desperately the "new Divine Right" advocates (i.e., the "unitary executive" crowd) may wish it were.

Yesterday I wrote:

Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

Which got me to thinking: If the president's Article II commander-in-chief power is unitary and plenary, then can the president unilaterally bring back the draft? (Recall that at least one presidential candidate has warned that a draft might be necessary.)

One would think, of course, that if the president cannot unilaterally seize steel mills for no other reason than "there's a war going on" then he certainly couldn't conscript people for no other reason than "there's a war going on," right?

However, since the famous Jackson concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), does not appear to be cited anywhere in the recently released "torture memo," such "simplistic" or "archaic" reasoning might not apply in the Yoo-based (as opposed to the sanity-based) jurisprudential community.

Just wondering.

---

The leading source for torture memo analysis is undoubtedly Balkinization's Marty Lederman. The alpha-and-omega observation:

The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.

Sounds about right — especially the "October 2003 memo" referenced in Footnote 10 suggesting that domestic military operations are summarily exempt from Fourth Amendment limitations. That should be a fun read.

---

For Discussion: Some are pushing for U.C. Berkeley's Boalt School of Law to dismiss Yoo from its faculty, based on academic incompetence (i.e., no one who is so wrong about such basic constitutional issues should be allowed anywhere near law school students). On the other hand: "tenure." Thoughts?

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
--Article I, Section 1

The executive Power shall be vested in a President of the United States of America.
--Article II, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
--Article III, Section 1

Article II, Section 1 ... contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I.
--Memorandum for William J. Haynes II (a/k/a the "Torture Memo")

It has long been noted by the sanity-based legal community that John Yoo's "unitary executive" theory of Article II's war power is facially absurd for the simple reason that there are clear references to the military in the enumerated legislative powers of Article I, Section 8. Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

In John Yoo's now-declassified "torture memo," he asserts the following:

In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy. (Page 5)

Really? Consider the following hypotheticals in a pre- or non-9/11 scenario:

1. Congress, as part of a routine defense appropriation, authorizes the funding, commissioning and deployment of a fleet of naval destroyers for the specific and sole purpose of patrolling the Gulf of Mexico to protect U.S. oil rigs in that region. The legislation is unambiguous: the Navy ships are only for the Gulf of Mexico and only there to defend oil platforms. Can the president, under a purported "unitary and plenary" commander-in-chief power, order those destroyers to be redeployed to drug interdiction without a revised Congressional authorization? How would that not be an incursion upon Congress' "unitary" appropriation origination function?

2. Could the president then constitutionally defy an explicit bill (assume a veto and override) reiterating the original legislation after the redeployment? How would that not be an incursion upon Congress' "unitary" veto override function?

3. Now assume that a non-nation-state Islamic fundamentalist terrorist organization, in a coordinated attack, destroys the Golden Gate and George Washington Bridges. Could the president, without Congressional authorization, permanently redeploy those destroyers to New York and San Francisco, despite the original, unambiguous dictate by Congress that the destroyers not leave the Gulf of Mexico? (Ignore temporary redeployments under the War Powers Act.)

4. The nation subsequently learns that the Islamic terrorist organization operates mainly from bases in Hypothestan. Subsequent to either a traditional declaration of war or some analogue to the AUMF, President Sally Kern deploys ground forces to Hypothestan to fight the Islamic terrorists -- and gays (who are, recall, a greater threat to America than Islamic terrorists). Congress did not authorize the use of military force against gays, and indeed expressly forbids it in subsequent legislation comparable to Hypothetical #2. Can Commander-in-Chief Kern disregard the "incursion" of Congress upon her "unitary and plenary" commander-in-chief power under Article II, to "keep America safe"?

To the extent that these hypotheticals are absurd, they are nevertheless robust given how absurd the original thesis of the unitary executive crowd itself is. These people actually believe that the president is, or ought be, a literal dictator in a time of war -- disregarding the pesky fact that the War on Terror will last perhaps forever.

Whatever those three "Section 1" pronouncements about "powers" were intended to mean -- it surely wasn't that.

Jack Balkin links, not unreasonably, the Spitzer scandal to the War on Terror:

These events offer a window into a much larger phenomenon, the National Surveillance State, in which the state increasingly identifies and solves problems of governance through the collection, collation and analysis of information. Governments have always used information, but today's techniques are made more powerful and more prevalent by lower costs of computing and data storage.
...
If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.

Of course, there ought to be another "limit," namely a rational basis for collecting such data.

It's one thing to suggest that there is a reasonable inference that a transaction involving over $10,000 in currency is likely, perhaps almost certain, to involve illegal activity, and that therefore the government has a rational basis to demand disclosure of all such transactions. That's not the libertarian conclusion, but it's not a facially absurd premise.

Demanding disclosure of all currency transactions involving over $100, however, is facially absurd. Demanding disclosure of all transactions of any kind over $100 would leapfrog over "facially absurd" and straight into Orwell. A terrorist can't bring down a skyscraper with one $100 bill or with one prepaid $100 phone card. The fact that the government can now technologically and economically perform such micro-surveillance still does not mean that it can constitutionally perform it. "You don't want another 9/11, do you?" is simply not enough to justify turning over every ATM, credit card, debit card and EFT transaction, no matter how small, to the government.

Even conceding (which libertarians ought never do anyway) that some (indeed most) laws are subject to mere rational basis review does not mean that a law that fails rational basis review (i.e., an irrational law) should not be decried — and judicially invalidated — as such.

Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
--Smith v. Maryland (Stewart, J., dissenting)

Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.
--Smith v. Maryland (Marshall, J., dissenting)

The Wall Street Journal has a feature story today on the federal government's increasing use of data mining (i.e., gathering random information about vast numbers of citizens, without any individualized suspicion of wrongdoing) in the War or Terror:

According to current and former intelligence officials, the [NSA] now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.
...
A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

The article mentions a famous — and atrocious — Supreme Court case from 1979, Smith v. Maryland*. The key holding in that case was that, since a person must "tell the phone company what number she is dialing," she cannot have any reasonable expectation of privacy in that phone number, and that the government can therefore demand that phone number from the phone company without a warrant based upon probable cause.

Stated differently, the Court held, preposterously, that there is no difference between AT&T knowing whom you're calling and the government knowing it.

(This idea that "your utility bills belong to the utility and not to you" is, incidentally, also the basis for "heat lamp warrants": the use by drug warriors of unusually high electricity bills — records obtained without a warrant, of course — as evidence to bring to a judge to obtain a search warrant for the premises.)

Beyond the facial (i.e., telephonic) absurdity of Smith v. Maryland at the time, are the ominous new implications it has for modern electronic communications. To posit that the government can obtain your phone logs is bad enough, but that still does not mean that the government can listen in on your phone calls without a warrant (ignoring for the moment unconstitutional violations of FISA).

But the information contained in, e.g., an email header often contains information that a phone number does not: the name (not just the email address) of the recipient, the subject matter, whether it is a reply or forwarded email, the size and file names of attachments, etc. For the government to simply declare, "We can access that header without a warrant — see Smith v. Maryland," is insolent obliviousness.

---

Equally insolent is the notion that "driftnet" surveillance — "get everyone's data and let the computers sort it out" — is somehow not problematic. This is the asinine proposition of, among others, Richard Posner: that "a computer can't violate your rights."

---

More thoughts from Threat Level, Deep Links, Concurring Opinions.

---

*Smith v. Maryland, 442 U.S. 735 (1979)

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..."

Can anyone poke any holes in this comment I left at another blog?

If the position of the United States government is that Iraq is at this moment a "sovereign nation" (and that is our position), then any "far-reaching agreements with the current Iraqi government" would be "treaties" in the constitutional sense and would require ratification by the Senate. The AUMF, which is neither a treaty nor a constitutional amendment, simply cannot apply to "far-reaching agreements with the current Iraqi government" any more than it could apply to "far-reaching agreements with the current Canadian government" or "far-reaching agreements with the current Australian government."

Poke away.

As the Bush administration turns up the volume on its despicable lies about the purported implications of the expiration of the insolently named "Protect America Act," it has become necessary to review what is and is not still the law regarding War on Terror eavesdropping.

First and foremost: FISA did not expire, the PAA expired. FISA* has no sunset clause; it is in full force until repealed or amended. Administration apologists have been relentless in propagating this lie.

And what does FISA provide?

1. Foreign-to-foreign communications are not protected from surveillance. That has always the case, and is still the case now.

2. When foreign-to-domestic communications are at issue, the government does not have to wait for a warrant from the Foreign Intelligence Surveillance Court. The government can initiate the wiretap and then seek a retroactive warrant from the FISA Court up to 72 hours later. That was the case before PAA was enacted and is still the case after PAA expired.

So again, when National Intelligence Director Mike McConnell and Attorney General Michael Mukasey insist that

"the delay resulting from this discussion impaired our ability to cover foreign intelligence targets, which resulted in missed intelligence information"

what they are really saying is that they themselves refused to comply with FISA's modest requirement that the government return to seeking retroactive warrants from the FISA Court (which, recall, are approved, literally, over 99.95% of the time).

So explain to me again who is putting Americans at risk here?

---

A few reminders, given how brazenly the Bush administration is flat-out lying about the warrantless wiretapping question:

--FISA is not a "Carter-era" law; it is a Bush-era law.

--When Administration officials use the term "terrorist," remember that they are conveniently omitting the words "alleged" or "suspected." This is a subterfuge they also use in another context.

--The original violation of FISA, the "Terrorist Surveillance Program," involved eavesdropping on American citizens on American soil. It defies and defiles every dictionary in the world to label such activities as "foreign intelligence" or "international communications." It was domestic spying, pure and simple.

--The Protect America Act**, meanwhile, is about one thing and one thing only: turning an undemanding, de minimis retroactive FISA warrant requirement into no requirement at all.

---

Meanwhile, the program has resumed, which I suppose means that government has also resumed paying its phone bill.

---

My old fifty-post chain on the warrantless wiretapping scandal here.

---

*Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq.
**Public Law No. 110-55 (PDF - 7 pages).

To review: New York City's random bag search program at subway entrances is unconstitutional because any search regime that is objectively worthless cannot possibly be deemed "reasonable" under the Fourth Amendment by any rational judge (irrational judges are another question altogether).

Armed with that:

Amtrak passengers will have to submit to random screening of carry-on bags in a major new security push that will include officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains, the railroad planned to announce today.
...
The new procedures draw heavily on measures being used in the New York City subways, Rooney said. That model has been upheld in court challenges[.]
...
People who are selected for screening and refuse will not be allowed to board, and their tickets will be refunded.

In addition to the screening, counterterrorism officers with bomb-sniffing dogs will patrol platforms and walk through trains, and sometimes they will ride the trains, officials said.

Some hasty stitches:

--Is the difference between blowing up a train and blowing up a train station equivalent to the difference between blowing up plane and blowing up an airport terminal? It's hard to think like a terrorist, but wouldn't blowing yourself up at Penn Station during the morning commute be more effective than blowing yourself up in the bar car on the Metroliner? This security theater does nothing to prevent attacks on crowded commuter terminals themselves, which are the true targets (at least in New York City).

--The very characteristic that makes the New York City subway search so mind-bogglingly stupid is the fact that would-be riders, who are anonymous, can decline to be searched, walk a block to the next entrance (or a few blocks to the next station), board there — and, if a terrorist, do their dastardly deeds anyway. Objectively demonstrable zero deterrence effect. For Amtrak, meanwhile, this wouldn't apply (since people must buy personal tickets as with air travel). So why in this instance also let them "just walk away" as we do on the subways? Why not record their data from the refunded ticket and possibly investigate them further? (I'm arguing here as a devil's advocate, not a libertarian. If you're going to have a dubious warrantless search regime, then at least try to use it intelligently.)

--Deploying sniff dogs on a train itself (rather than on platforms or in baggage areas) comes perilously close to constituting suspicionless dog sniffs of a person's body, an uniquely intrusive form of search that has never been endorsed by any court, and certainly not by the Supreme Court.

--From the article: "Amtrak has received a number of federal grants aimed at boosting security, but officials said there was no specific mandate to implement the changes." That would be on top of Amtrak's $1 billion annual subsidy from taxpayers (i.e., people who don't use Amtrak).

Remember always: The government's approach is that it is better to feel safe than to be safe — or free.

All aboard?

More thoughts at Concurring Opinions.

Two hasty stitches regarding the recent stories about electronic devices such as laptops, cell phones and Blackberries being seized and searched at border crossings:

1. The lawsuit that was recently filed by the Electronic Frontier Foundation does not challenge the propriety of the intrusive searches. The litigation is over pending Freedom of Information Act inquiries to Homeland Security regarding the policy (e.g., how often such searches occur, is there any racial profiling, etc.)

2. No matter how intrusive, the searches are, absent a major rethinking of constitutional jurisprudence, entirely legal:

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789 had, some two months prior to that proposal, enacted the first customs statute. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed[.]" This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place" where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago.

--U.S. v. Ramsey, 431 U.S. 606 (1977) (internal citations omitted)

Of course, times change, and what was once straightforward constitutional thinking can later be deemed flawed or even abhorrent. An argument can be made -- libertarians are making it now -- that "the longstanding right of the sovereign" to exercise plenary control of its borders may have made perfect sense when only people and packages came across those borders, but in a digital age when "packages" are likely to include an individual's (or a business') most private information -- information that poses no proximate threat the way a weapon or an invasive species does -- such plenary authority should yield to a more probing analysis: What, exactly, is to be gained by copying a border-crossing citizen's hard drive or Internet bookmarks? How, exactly, is the government going to decide who is subject to what kind of data search? What is the price we pay, in terms of lost privacy and personal indignation, from being ordered to enter our passwords into our laptops or to have our cell phone contacts recorded?

If we must accept, for now, the argument that "it has always been so," then the government must also accept the possibility that "it should no longer be so." DHS is on solid footing -- today.

But tomorrow is another day.

More on the law of border searches here. A PDF of the EFF complaint (18 pages) here. Inspired by this post at Liberty Papers.