Killers By Any Other Name

Stephen Castle in the Times.

A knife attack in a London subway station on Saturday was being treated as a “terrorist incident,” the police said after they arrested a 29-year-old man suspected of the assault.
A 56-year-old victim sustained serious, but nonlife-threatening injuries, and two others were wounded less seriously at the Leytonstone station in East London. The suspect was detained after officers used a Taser on him.

An ugly story.  A horrible thing.  "Absolutely shocking," said Jeremy Corbyn, leader of the opposition.  The only good news is that nobody died.  Still.

“I would urge the public to remain calm, but alert and vigilant,” Cmdr. Richard Walton, who leads the Counter Terrorism Command of London’s Metropolitan Police, said in a statement. “The threat from terrorism remains at severe, which means that a terrorist attack is highly likely.”

Of course.  It's Britain.  The Blitz.  The IRA.  Stiff upper lip.  Keep calm and carry on.  But it's terrorism, so if you see something, say something.  (Not just our side of the pond.)

Wait, I'm already getting sidetracked.  It's that first line of the story that caught my eye, the part about how it's "being treated as a 'terrorist incident."

We know about that.  It's how the FBI is investigating the killing of 14 in San Bernadino.  And of course there were the 3 at Planned Parenthood in Colorado and the 9 at the Emanuel African Methodist Episcopal Church in South Carolina.

All of which were terrorism.  Or not.  

We wade into this linguistic thicket on a regular basis, it seems.  Whenever the body count mounts. 

This time Greenfield's insisting that words have meaning, that terrorism untethered to any single meaning is just whatever feels (as distinct from feelz, I think, though I'm not sure just what the difference is).  And so he insists on statute.

And this is why the definition is best grounded in statute. That humanities academics enjoy arguing over how many angels can dance on the head of a pin elucidate nothing. If we’re to use words, there must be a common definition. Adding the word “terrorism” either means something or it’s just another word designed to create hysteria.

Over at Fault Lines, Noel Erinjeri too turned to statutory definition while insisting that names don't matter but that if he's guilty He damn well oughta get LWOP.

But what we call him isn’t important. What’s important is that he be prosecuted according to the due process of law. And, if he’s convicted of first degree-murder, that we lock him up and throw away the key.

I've dropped in on the question, too.  After the shooting in Charleston, for instance, where I quoted what Greenfield had to say at the time.

DOJ is trying to determine whether it was a hate crime or terrorism. Presumably, that's so that they can prosecute the bad guy if South Carolina decides to give him a medal. And folks across the spectrum are arguing about which of those it should be called.
As if it mattered.
Scott Greenfield:

Murdering people is offensive. Murdering people because of their race is offensive. What you call it is irrelevant. When you understand that, the debate over whether to call it terrorism begins to look a lot more ridiculous, narcissistic and offensive.

Which is of course true. Kinda. 

The thing is not so much that we've all been mostly wrong in what we've written (though arguably we have) but that we've been missing the point.

Oh, we've all started from the premise (explicitly stated or otherwise) that words matter.  The Greek word, logos (λόγος), after all, is the root of logic.  

More, the word calls forth the thing.  God, you'll recall, named the world into existence (Genesis 1:3). 

And God said, Let there be light: and there was light.

In fact, God was the word (John 1:1)

In the beginning was the Word, and the Word was with God, and the Word was God.

Indeed.  We were right.  Words matter.

And while it's common and mostly proper to insist that those words have meaning on which we can all agree,* that's for purposes of advancing actual thought.  If it's important for a specific reason to know whether something is an act of terrorism (because of a potential legal consequence, say), then obviously it's important to have a definition as a referent.  But mostly that's irrelevant.

It doesn't matter, for purposes of any available legal consequence, for instance, whether Tafsheen Malik and Syed Rizwan Farook were terrorists.  They're dead.  We don't try dead people in our courts.  We don't sentence them.  We don't hang their bodies at the edge of the city to deter other would-be whatevers.**

But there are other sorts of consequences to terrorism than the legal ones.  For those, imposing definitions is trickier.  They're the emotional and political consequences.

Terrorism is what justified Barefoot Scope 'n' Grope by TSA at the airport.  And keeps us docile enough to accept it.

Terrorism is what allows governors to declare that Syrian refugees can't be allowed to cross their state borders and Presidential candidates to vie with each other in demanding that they be turned away before they even reach the nations.  (Let the little kids drown since they'll surely either be carrying bombs or will grow up to make and plant them.)  

Manchurian Candidates every one.

It's important, for whipping up frenzy and justifying the metaphorical ovens that there be no definition.  If there's a definition of terrorism, then it's harder for the demagogues to do their demagoguing.  Absent a definition, it's a free for all.

And of course there's the pure feeling.  

If it's an act of terrorism, we should all be scared.  If it's just garden-variety psychopaths or pissed off folks, no need to worry.  

After all, if they were terrorists, they showed that terrorists can strike anywhere - even the Inland Regional Center in San Bernadino.  So nobody is safe and everyone should be scared. 

If they weren't terrorists, then it's just ordinary crime that can occur anywhere - even the Inland Regional Center in San Bernadino.  So we're all safe and nobody needs to be scared.

If we had a real definition, we'd know, and then you couldn't decide for yourself.

As Juliet said.

'Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What's Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
Retain that dear perfection which he owes
Without that title. Romeo, doff thy name,
And for that name which is no part of thee
Take all myself.

------------------

*It was the vacuous Khalil Gibran, had his Prophet say that we would "never understand one another until we reduce the language to seven words."  He didn't add that at that point we would understand only that nobody had anything to say.  We might as readily reduce the language to grunts.

** I had a client on death row who died while his petition to the Supreme Court was pending.  The petition was dismissed as moot.  No relief for the dead guy.  On the other hand, the state of Ohio didn't get to execute him, though that's really not relevant here.

"We can't kill our way to a peaceful tomorrow."

This is Anna Allison. As she was.

On September 11, 2001, she was in an airplane that was crashed into one of the towers of the World Trade Center.

Nearly 3,000 people were killed that September day by the acts of the terrorists. They left behind untold numbers who knew them, miss them, cared for them, loved them.  They left fathers, mothers, brothers, sisters, sons and daughters, grandparents, nieces and nephews, classmates, co-workers, friends, neighbors, even strangers who grieve, have grieved, will grieve.

Among those was Anna Allison's husband, Blake.

Blake is among 10 family members, chosen by lot, to go to Guantanamo Bay and witness the arraignment, before a military commission, of the alleged mastermind of the September 11 attacks, Khalid Sheikh Mohammed, and of four others the government says are terrorists.

The government's hope, its desire, its commitment, and its full expectation is to get the commission to say they should be killed and then to kill them.

Blake wants to save their lives.

Josh Margolin, writing in the NY Post.

He said his opposition to execution is rooted in his Episcopalian faith.
“When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’
“That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”

Blake has talked about this with the other 9, er, lucky witnesses. They all want the 5 to be killed.

I know they’re sincere in their beliefs,” he said.
“They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”

This is the New York Post. A newspaper that can't imagine a presumption of innocence, or even uncertainty.  Margolin writes that Blake wants

to try to save the lives of the al-Qaeda monsters who planned the murder

and explains that he's in Guantanamo for

the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices.

When what purports to be a news report characterizes the accused (and at this point, that's all they are, rhetorical hyperbole from the Post or elsewhere aside) as "monsters" and "evil," you know not to expect much objectivity. But maybe it's the Post's absolute amazement that accounts for the story.

“The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post.

And then Blake Allison said the line that gave this post it's title.

We can't kill our way to a peaceful tomorrow.

Your Secret's Safe With Me

When I was Legal Director of the ACLU of Ohio, I'd regularly be asked by reporters about some new idea for data collection.

• BMV wants more information about you before you can get a driver's license just to make sure you're a citizen.
• The Highway Patrol is installing license plate scanners at toll booths on the Turnpike to look for stolen cars.
• If you're charged with a misdemeanor the Sheriff's office will take a DNA sample.
• Red light cameras on the streetcorners.

That sort of thing.

Every time, the government agency that announced the plan or the legislators who cooked it up would explain that it was fine.  Once they ran the information through the instant-check database and determined that there was no problem, it was automatically deleted.  And if it was saved, it was secure.  Nobody could ever get at it.  It could never be misused.  They'd never change the rules.  We were safe at absolutely no cost to freedom.

Every time, it was a lie. 

What we know about data, I explained to those reporters, was that sooner or later it will be abused, misused, and maybe lost.  And I would point to your social security number which was, by law, when the system was first set up, to be used only for purposes of the social security system; to the guy who walked off with some government agency's laptop containing the personnel files (including social security numbers) of 500,000 people, to the private business that lost 1.3 million customer accounts including credit card records, to  the . . . .  You get the point.

So when the guys at TSA tell me that they can take take naked pictures of passengers and

1. nobody will ever be able to connect the picture to the face;
2. the picture can't be saved, and
3. it's all perfectly secure and totally safe,

I know that they're lying.  Even if they believe it.

Hell, at the Miami airport they were abused during a training session.  The victim of the abuse ended up charged with assault.  Gizmodo reports the story and includes the image that cannot be saved.

Need more evidence that pictures that will not be saved and cannot be saved are routinely saved.  Back to Gizmodo for 100 leaked body scans (although from a far less detailed system than the airports use).

Ah, but we're safer.

You know, take naked pictures of us.  Grope a bunch of us.  Keep us all safe.

Over at Popehat, Ken does the math by a thought experiment.  Imagine, he says, that pervert terrorists tell us they'll kill 450 Americans a year (roughly the capacity of a jumbo jet) unless we meet their demand, and we believe that they'll try.

America must select 25 million of its citizens per year. Those citizens must give complete strangers working for the government a brief look at a blurry naked picture of themselves. In addition, the complete strangers working for the government must select 1 million of the citizens — men, women, and children of all ages — for “special treatment.” That “special treatment” involves the one million lucky citizens submitting to the strangers from the government briefly running their hands over the citizens’ clothed breasts and genitals, in public, in front of a crowd of annoyed strangers. The whole experience takes about an hour of the citizens’ time every time they have to put up with it.

The question Ken asks, is whether we'd do it.

Of course, we wouldn't do it in response to the demand. That would be letting the terrorists win.

Instead, we'd do it because we want to.

Hmmm.

Because Freedom's just another word for nothin' left to lose.

Frosty the Terrorist

It's the holiday season.

The kids will be out of school.

Government offices will close for a couple of days.

Family gets together.  But family no long all live within an hour's drive, and flying remains (however cramped the seats and however much you might yearn for the days when they served peanuts - or even full-course if not full-flavor meals) statistically the safest way to travel.

So head for the airport.

What's that?  You don't want to be sexually molested assaulted  groped professionally frisked for weapons of mass destruction?  Or photographed naked by the dick measuring device?  Damned spoilsport.  Suck it up and get in the scanner.  Or so says former TSA agent "Mom."

Flying is a privilege not a right.  As such, it can be and is regulated.  Requirements can and are set up to ensure that everyone who flies is safe.  If you don’t like it, then don’t fly.  You may not be as concerned as the next guy about the safety or you may be more concerned.  Point is the job of TSA is to ensure the entire traveling public is safe not just you.  TSA officers don’t care what you as an individual want, they can’t, it just isn’t possible.  You may be ok with lax security but what about the next passenger who wants thorough security?
Your right to privacy isn’t being violated at all.  You always have the option to drive a car, take a train, grab the bus or start rowing a boat.  You do not have to fly, you just want to fly.  The minute you decide you want to fly then you have to accept that security is involved and you are going to have consent and submit to it period the end.
. . .
Now if you want to fly, suck it up and accept that you have to submit to the security procedures.  Yes you think they are stupid or unnecessary but TSA officers and TSA don’t care what you think.  They try to make it all warm and fuzzy but they can’t because it is security not a trip to Disney World.  Shut up and get in the scanner or don’t fly.

Though even Mom admits that the groping is a bullshit.

Ok that one is bullshit.  It is a terror tactic by TSA to get you to walk through the more thorough body scanner.  I can’t defend TSA on this one.  I have talked to the TSA officers and it is no more effective than the old pat down procedure.  They tested it out with trainers and each other.  It is purely a terror tactic by TSA.  Shame on TSA and anyone who has to get one should write a complaint in afterward. 

But really, you know that everything can be dangerous.  They should probably just make us all fly naked.  And no baggage at all.  Then we'd be safe.  (Unless the engine falls off or something, but hey, that's not TSA's problem.)

Just ask the people who hoped to use the Bradley International Airport in Connecticut last week.

From the Hartford Courant (via Turley).

State police say a harmless snowglobe in a carryon bag caused a partial evacuation at Bradley International Airport.

State police Lt. J. Paul Vance says a Transportation Security Administration worker spotted something that looked suspicious while screening bags and alerted state police shortly before 11 a.m. Sunday.

Vance says Terminal A was evacuated as a precaution but was reopened about 45 minutes later, after authorities determined the snowglobe did not contain explosives and was not a danger. 

I feel safer now.

Of course, there's also a fair chance they broke the snow globe.

Ah, for the days when the only problem was that they couldn't get the damn planes off the ground and kept you sitting in the airport. You remember.

(Sorry, I can't find a version of Paxton singing it. )

The Name's Al, Like in Qaeda

A story on the CBS News Health blog suggests that the idea of marijuana as a so-called "gateway drug" hails from the era of Nancy Reagan's "Just Say NO" campaign.  I'm old enough to remember being told that many years before (though I don't know that the term "gateway drug" was in use way back then).

The idea, of course, is that the joys of marijuana would just naturally make you want to experience the greater joys of cocaine and heroin and methamphetamine and maybe even tobacco.  Who knows what insidious danger there might be in that first puff.

Of course, it's nonsense.  Marijuana use doesn't cause people to use other drugs.  And the college student who blows a little dope isn't likely to become a drug addict.   Still, if there's no particular evidence that using marijuana leads to use of other drugs, there's some marginal evidence that a more-than-random-chance percentage of people who use other drugs (the ones that scare us more) previously used marijuana.

Of course, the people who use those other drugs more than likely have, at some previous time (perhaps even simultaneously), worn clothes.  They've almost certainly had a drink of water at least once or twice.  And an absolute 100% of them breathe on a regular basis.

So let's see.  If we round up all the people who've done any of those things and lock them all away in places far more secure than our prisons, we can probably prevent them from ever taking up cocaine.

We call that "preventive detention," and generally frown on it since our system of criminal justice is designed on an after-the-fact model.  (We prosecute and punish for what you did, not what you might do.)  And there's good reason.

See, basically we suck at prediction.  Our skill at figuring out which prisoners will be fully rehabilitated and which will recidivate falls somewhere south of our ability to predict the details of the weather on a day 4 months hence.  Broad guesses about general likelihood, maybe.  (It'll be winter then, so probably cold.)  But pretty much worthless on details.  (Major blizzard that day?  High 28?  Don't tell the Old Farmer with his almanac, but we haven't got a clue.)

Except we pretend otherwise. 

Those folks we're holding at Gitmo forever?  That's because they're so horribly dangerous.  We just know they'll do whatever it is again, just as we knew all those others we had there and then sent home because they were picked up by mistake would, even the ones who didn't do it before.

That guy down the street who was once convicted of a sex offense?  You bet your booties.  Every sex offender is a predator and no predator can be rehabilitated.  Evidence to the contrary (of which there's a ton) doesn't count.

In Texas, where in order to sentence someone to die the jury has to conclude that the person will, if not killed, pose a continuing threat of criminal violence, the predictions of future dangerousness are eased by whores psychologists hired by the state.  Take, for instance, Randall Dale Adams.  (You've maybe seen the documentary about his case, The Thin Blue Line.)  

Based in part on the testimony of now-disgraced psychologist James Grigson who assured the jury that Adams would kill again, he was sentenced to die.  Except, you know, he didn't do it, wholly innocent.  The killing in that case was done by a young man  named David Harris.  Still, Grigson maintained that even though Adams hadn't killed before, his prediction that Adams would kill again was accurate.  (Grigson claims his predictions are never wrong.)  It's been 33 years since the killing in that case, just over 21 since Adams was released from prison.  He's 61 years old.  He hasn't killed anyone yet.

Which brings us to Tim McVeigh, Zacarias Moussaui, and maybe your next-door neighbor.  At least, if you live in one of the targeted places.

A YOUNG man walks into a Home Depot and buys a large quantity of acetone. Later, a young man walks into a beauty supply store and buys hydrogen peroxide. Still later, a young man is observed parked outside a nondescript federal building in a rented van, taking photographs.
No crime has been committed. But should any of these activities (acetone and hydrogen peroxide can be components for explosives) be reported to and evaluated by law enforcement officials? If they are reported, the government may infringe on privacy and civil liberties. If they are not, we might not know until it’s too late whether it was the same young man in each instance. We might miss the next Timothy McVeigh.

The quote is from an Op Ed in yesterday's Times by John Farmer, Jr., Dean of the Rutgers School of Law- Newark.  Sure.  Could be.  We might also, of course, simply be harassing a young man or three for no good reason.  Which is more likely?

Farmer was advocating the clunkily named Nationwide Suspicious Reporting Activity Initiative, an expansion of the famed See Something, Say Something which encourages people to call the cops (or homeland security) when they notice something that strikes them as suspicious.

So now it's acetate and peroxide and photography.  Scott Greenfield explained.

How ever will the government connect the dots unless somebody gives them all the dots to connect?  So what if a guy buys acetone because, well, he needs acetone.  Or maybe his wife wants to bleach her hair blond?  The wealth of perfectly lawful, not to mention normal, activity that could conceivably be a precursor to terrorism is incredibly huge, and we can't expect the government to do this job all by itself.  If only each of us was to have the government on speed dial...

Suspicious Activity Reporting begins at the troubling intersection where law enforcement meets intelligence. Its premise is that if potential attacks are to be prevented, and not merely responded to, law enforcement must focus on precursor conduct — surveillance or “casing” of bridges or train stations, for instance — that may not itself be criminal, but may signal a coming attack.

You can never be too rich, too thin, too cautious.

But it's all good. You see, Homeland Security knows that this program could violate people's rights, so it protects against that.

The Suspicious Activity Reporting program recognizes both the necessity for a focus on precursor conduct and the potential for abuse. It strikes a balance by establishing a uniform process for gathering and sharing information. It seeks to avoid racial profiling and other law enforcement excesses by requiring that the reports be based on the evidence of suspicious conduct, not on what the person looks like or where he comes from.

OK, so when you call in about the brown-skinned guy with the turban, you won't be allowed to make the report?  Sure.  But I'm just being cynical.  After all, Farmer assures us that "civil liberties groups" are on board though he then acknowledges that the ACLU says that it

increases the probability that innocent people will be stopped by police and have their personal information collected.

Of course it does.  If you're going to go after people who do altogether innocent things because those same things (we're back to drinking water and breathing) are done by people who have nefarious intent, you're necessarily going to stop and investigate the innocent.   That's built in.  And it's not anything new.  

Consider 2006.  That year police stopped and frisked 508,540 people on the streets of New York City.  Every one of those people stopped had personal information logged into police computers.  And from those stops?  They arrested 21, 268 or just over 4%.*  96% of the time they were harassing and collecting data on innocent people.  (Story here.)

Ah, but they arrested 21, 268 people.  See how many bad guys they took off the street.  See how much safer we are.

Sort of.  But even if you think it's OK for the other 487,272 to have been stopped and frisked and had their personal information taken to fatten the NYPD database of potential trouble-makers, even if you think the balance is fine because innocent people never mind being harassed by the cops and treated like criminals as long as you aren't that innocent person, even if you're comfortable with that . . . .

Even then it's a wholly flawed system.

Here's the thing.  Carefully targeted investigation yields substantial results.  Checking on everyone about whom someone has a hunch -- that's a distraction.

 I wrote the other day about how in Sunbury, Pa. the working assumption seems to be that about half the adult males are sexual predators intent on preying upon young children on their way home from school.  That's not just grossly wrong.  It's not just that it makes us unnecessarily afraid.  That sort of foolish belief actually makes us less safe.  Because while we're worried about almost certainly innocent strangers, the far greater danger is right at home in the living room, and down the street, and in the churches and temples and (yes) mosques.

We get distracted by the false reports.  They have us worried about the wrong things hiding from the safe in the midst of what's dangerous.

Consider tracking terrorists.

There aren't many. We're looking for that metaphorical needle in the haystack.

We can't examine every piece of hay.  (Straw? I'm a city boy, what do I know?)  We need a way to narrow the search.

But what we're doing through initiatives like this is making the haystack bigger.  Which makes it harder, not easier, to find the needle.

Windypundit Mark Draughn offers this set of options about how SAR will work.

Ending A: The tips are logged and encoded into the SAR database. Minutes later, advanced datamining algorithms scan both incidents and discover a link. The items are flagged for human processing. An analyst determines this is actionable intelligence and forwards it to the FBI counterterrorism coordinator. Within hours, a warrant is issued by a special federal court and the FBI's SWAT team is kicking down doors. A major terror attack is averted, thanks to alert citizens.
Ending B: The tips are logged and encoded into the SAR database. Fourteen weeks later, a police detective temporarily assigned to his city's Joint Terrorist Task Force's Investigations unit spends eight minutes interviewing each person who provided a tip, carefully filling out the proper Homeland Security interview forms. Four weeks after that, a clerk types his answers into another database, and seven weeks later another analyst clicks the "Reviewed" box on his computer. Two months later, then again at the end of the year, a line in an SAR summary report has a number that is larger by one. Nothing else is ever done about either of these tips, and there is no resulting terrorism incident.

Windy knows which ending he thinks is more likely.  And he's right.

And that's when the social costs in terms of civil liberties/freedom from government intrusion ought to make even the folks who don't really care much about anyone's freedom as long as there's some danger to be prevented, that when the costs even for those folks seem to get out of hand.

It's a lousy deal.

But not for Dean Farmer.

At bottom, whether the civil liberties risks posed by the reporting program are justified turns on whether the administration’s claims about the evolving threat are true. The attacks of the last year suggest that they are. As for the idea that it will bring police departments into new territory, surely police officers have always been on the lookout for precursor conduct — burglars casing a home or bank, for instance. The difference here is one of degree.

Look carefully at that degree.  It's the one that says, since you already don't have total freedom, you might as well give up what freedom you have left to be maybe, possibly, theoretically, safer.

But you know, it really is possible to end up both less safe and less free. 

Your tax dollars at work.

-----------------

*To be scrupulously fair about it, a somewhat larger percentage of the time, police issued summonses to those they stopped.  That is, they charged them with offenses too petty to warrant actually hauling them in.

Overwhelmed By the News Cycle

I was going to do an Ohio update.

* * * * * * *

We have a government murder scheduled for Thursday morning.  Michael Beuke is due to be poisioned.  If there's a problem with the thiopentol (the anesthetic that's the basic killing method here now), then they go to Plan B.  But Plan B is problematic for Beuke, as Andrew Welsh-Huggins reported for the AP.

Beuke says a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in the backup method which injects drugs into muscle.

Of course, nobody's ever used the back-up plan, so if it does get used - whether on Beuke or someone else - Ohio will be conducting human experiments in murder.

There'll be a hearing in Beuke's case Monday afternoon in Columbus.

Joseph Mengele's ghost will be watching.

* * * * * * *

Former Ohio Attorney General Marc Dann entered Alford pleas on Friday to a pair of ethics violations.  The claim is that he illegally funneled campaign and office transition funds to staffers.  He was fined $1,000 and ordered to do 500 hours of community service.

Dann was in office just briefly, forced to resign after stories of sexual harassment and frat party behavior by Dann and his staff.  There's really not much to it.  Hubris, immaturity, foolishness.  He and his pals were little more than an additional embarrassment to a state who's prior governor paid $4,000 in fines as a result of his admission of ethics violations.  

Maybe that's why the plea got so little coverage in the media.  But it should have gotten more.  Government corruption takes many forms.  There's the great and the petty.  Dann's was petty, small potatoes.  But the Attorney General is the chief law enforcement officer of the state.  Corruption there is never minor, should never be seen as trivial.

If the Rule of Law (one of the themes of this blawg, it seems) is to be meaningful, it has to be top down.  And, frankly, ethics violations by government officials are more troubling than the slap-on-the-wrist sentences they typically draw.

* * * * * * *

Anthony Sowell's alleged home, the place where they supposedly found all those bodies, is the subject of the latest litigation in his case.  Sowell, you'll recall, is facing 85 counts derived from the discovery, it is alleged, of 11 bodies of raped and murdered women in his home.  We learned a couple of weeks ago that Judge Saffold had been removed from the case.  On Thursday, newly assigned judge Dick Ambrose had his first hearing in the case.

He rescheduled the trial, which was pretty much a given.  He's taken under advisement the request to issue a gag order.  But as I said, Sowell's home is the focus of the most interesting jockeying.  Karen Farkas from the Plain Dealer explained.

The judge also did not rule on a request to reduce protection of Sowell's home, which was filed by assistant county prosecutors Richard Bombik and Pinkey Carr.

The prosecutors said a fence costing more than $15,000 was put up around the home after Sowell was arrested and the Cleveland Police and Cuyahoga County Sheriff's Department are sharing a 24/7 detail outside the house. They would like to modify that to nighttime hours.

Sims said after the hearing the house needs to be protected because of threats to burn it down. 

Cleveland's broke, which could help focus the decision.  It wouldn't be the first time that fair trial stumbled over finances.

* * * * * * *

Like I say, I wanted to write about Ohio.  But then Obama decided that he needed to jump into the Miranda fray.  And then we learned that the rumors are true and Elena Kagan is to be nominated to the Supreme Court in the morning.

Kagan is, by all accounts, smart.  She's likely to get confirmed without too much trouble.  And she's never been on the bench, which is a nice change of pace.  She's also, alas, yet another creature of the east coast educational elite who's never represented real people.  No surprise there, of course.

The last Justice who'd ever practiced what a friend used to describe as "little guy law" was Thurgood Marshall.  Representing the little guy is not, after all, its own reward.

On Saturday, the New York Times got together 10 prominent and formally diverse (woman, Asian, gay, veteran, immigrant) voices to advance their theory of the sort of person who should be appointed to the the Supreme Court.  As Orin Kerr pointed out at The Volokh Conspiracy yesterday, many of these folks demonstrate the point that

when someone makes an argument that a President should select a Supreme Court nominee with a particular experience or worldview, there is a very highly likelihood that the person making the recommendation has that exact experience or worldview.

That much said, Norm Pattis, trial lawyer, has led the blawgosphere demands of a trial lawyer for the court.  I happily seconded the notion, though with not even a hint of expectation it would happen.  Presidents in general, and Obama in particular, may make appointments for diversity, but it's diversity aimed at satisfying interest groups, not at fundamentally changing the game.  Norm's Gerry Darrow was never going to be appointed.  Oh, sure, Obama wouldn't want the fight that would go with the appointment.  More to the point, though, he has no interest in rocking boats.

His "change" was to be one of style, manner (and of course pigmentation and backstory).  To think that it was going to be systemically revolutionary?  Nah.

You say you want a revolution?  (We all want to change the world.)  Think populism.  Think tea party.  Then imagine Sarah Palin for the Court.

Of Kagan?  Apparently a moderate liberal.  No serious concern for civil liberties.  No serious concern for checking the power of the executive.  How do we know?  Not from her speeches or law review articles and not from her filings as Solicitor General.  We know because if she were a firebrand with ideas and commitments outside the institutional mainstream, if she were genuinely interested in the little guy as more than an academic construct, if she were something other than a smart, establishment, lawyer with an ivy league (or equivalent) background, she would have been dangerous.

The one thing nobody in power wants to put on the Court, is someone dangerous.  And we define "dangerous" in this context as "someone who doesn't think - at least in broad terms - the way the power elite do.  And we measure that by searching for someone like us - or like those of our base we want to placate.

Elena Kagan.  You get what you elected.  And you shouldn't have expected anything else.

* * * * * * *

Which brings us to the final piece of the news.  Here's the beginning of the story from the Times.

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.

I haven't weighed in on the debate over whether interrogators properly decided they should read Faisal Shahzad his Miranda warnings after several hours of interrogation.  Obviously, the warnings didn't stop him from talking.  Equally obviously, it seemed to me, they should have read him his rights - if they wanted to use his words against him in court.

I don't know how many times clients have explained to me that they can't be prosecuted because they weren't read their rights.  Were you interrogated?  I ask.  They never asked me nothing.  Then so what?  They don't get it.  

Doesn't every cop on TV have to read a Miranda card immediately upon arresting someone?  Sure.   But it's a literary trope.  Let me be clear.  Miranda is a constitutional requirement only for a person (1) in custody (courts find almost nobody to be in custody for Miranda purposes, but we're talking judicial theory here, not judicial practice), (2) being interrogated, and (3) from whom the authorities hope to get a statement that they will use at trial.

The law does not require Miranda before questioning in non-custodial settings.  The law does not require Miranda when there is no interrogation.  And most emphatically, the law does not prohibit custodial interrogation without Miranda warnings.  All it says is that statements made during such interrogation cannot be used at trial (with certain exceptions).  And, of course, even that rule doesn't apply when the "public safety exception" of New York v. Quarles comes into play.

And yet.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions. 

Please.  No, they really don't.  Not unless we're talking about exceptions to the quasi-policy against waterboarding. 

And, frankly, as Orin Kerr explains, it's very far from clear that Congress can make any such exceptions and have them survive constitutional muster (not that such niceties seem to be much of a concern to either Presidents or Congress).

As I suggested above, those who believed Obama had any interest in change that was actually revolutionary, were delusional.  (I only suggested that above; I'm saying it now.)  One had hoped, though, that he was not so much interested in leading from the rear.

Professionals At Work

Sometimes the video is all you need.

This is something of a me-too.  Radley Balko posted it.  So did Robert Guest.  And Scott Greenfield.  Frankly, there's not much to add to the video itself: A SWAT team executing (if you'll excuse the term) a warrant on a home in Missouri.

A couple of weeks ago, I quoted this passage, written by Justice Antonin (head buried in the sand) Scalia, from the majority opinion in Hudson v. Michigan.

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

Here we see that "increasing professionalism."

The cops acted properly.  They got their warrant.  They went after the miscreants.  Did their job.  Smashed down the door, shot the family dog, terrorized the family and the kids, busted the parents for misdemeanor pot possession - and for endangering the welfare of the kids.

Saving the future, one dead dog at a time.

The kids, no doubt, are grateful for the fine work the cops did protecting their sensibilities.

Once again the question: Isn't it time to stop doing this stuff?

God Bless us, every one.

Be Afraid. Be Very Afraid.

I'm not a tech kinda guy. I struggle with the mechanics of this blog business (which is probably obvious to anyone who wonders about the odd spacing between lines and how it is that fonts seem to change haphazardly in the middle of a post). But the problem I'm having at the moment isn't technological, it's legal - a matter of copyright.

What I wanted to do was start this post out not with an apology/explanation (which is, in my tiresome and roundabout way what I'm doing - good god, I hope I don't sound like Jack Marshall) but with a copy of Monday's Curtis.

Curtis, for those who don't know, is a comic strip about an 11-year-old African-American kid in a warm, loving, getting-along-but-struggling family in the big city. Curtis' best friend is a fellow named Gunk who comes from Flyspeck Island - apparently a place of magic and miracles and all sorts of things that get Curtis in trouble.

Anyhow, I wanted to put today's strip at the top of the page, but see, I don't have reprint rights (and won't seek them or pay for them) and without them, everytime I copy the strip and then paste it, it turns into a note that says I don't have authorization. (I suppose I could scan it and then post it, but that would be copyright infringement and, anyway, I don't have access to a scanner this minute. End of apology and explanation.

Now, here's the post.

Imagine, if you will (and if you won't, why are you here) two boys walking along the street. One, a blond kid, is explaining to his friend, a black kid, about Flyspeck Island peanuts which, if you eat one, allows you to hear what people are thinking. Curtis got in trouble with them last week. Here's the panel by panel dialogue:

Panel 1: GUNK: Believe it or not, Curtis, the Flyspeck Island peanut has its positive use!

Panel 2: GUNK: It was developed by top Flyspeck Island scientists at the request of the Flyspeck Island Judicial Department.

Panel 3: GUNK: The judge would take one to find out if someone was lying or tellin' the truth!

Panel4: CURTIS: Isn't thought-reading an invasion of a person's privacy?
GUNK: We have a zero percent crime rate on Flyspeck Island!

That's the quandry, of course. What will you trade for safety? How about for the illusion of safety?

Yesterday, I took a plane. I stood in line for 30 minutes or so waiting to go through security. A TSA officer compared the name on my boarding pass with the name on my driver's license and actually held up the license picture and looked from it to my face. He let me pass. (No jokes, please. It's a federal offense to joke in the security line.) Then I dutifully took off my shoes and belt and jacket. I emptied the fairly substantial amount of metal stuff in my pockets into my shoes and jacket pocket. I took my laptop out of its case. I took my quart bag of shaving gel and toothpaste and mouthwash and deodorant out of my carry-on. I put bunches of stuff into bins and the bags onto the conveyor along with the bins. I walked through the metal detector and got dressed.

Were I a determined suicide bomber, I could have killed dozens, perhaps hundreds, of folks while I was undressing for the screening. A shade less fancy than hijacking an airliner or blowing it up in mid-flight, but suitably gruesome. Truly strip and body-cavity search everyone. Then eliminate all luggage, checked and carry-on. Then eliminate passengers and flight crew. The plane may just be safe from terrorists. Especially if it doesn't fly.

In a sufficiently aggressive police state, street crime by everyone except the police can be pretty well eliminated.

We, by which I mean the framers of this republic, made a choice not to be that society. We, by which I mean fear-mongering politicians and their successfully fear-mongered constituents, insist that the way to honor that choice is to become that society.

And so we move toward strip-searching airplane passengers;* we exile those ever convicted of sex offenses; we lock drug users up for decades; we criminalize everything we can think of and then pile on. Then we adopt zero-tolerance policies.

They're the policies responsible for the boy being expelled for giving his asthma inhaler to a fellow high school student suffering an attack who'd left hers at home. (And for the 11-year-old boy who died because his school's zero-tolerance policy forced him to leave his at home.) They're the policies responsible for Zachary, the 6-year-old with the scout camping knife/fork/spoon suspended and sent to reform school. And of course you can't joke to TSA when you're trying to get on an airplane.

The idea has two parts:

1. Schools (the world) are dangerous places and all danger must be prevented.
2. Discretion might be (probably will be) abused, so prohibit it.

The problem, of course, is that prohibition of discretion is its own problem. Here, from the Times article about Zachery:

Education experts say that zero-tolerance policies initially allowed authorities more leeway in punishing students, but were applied in a discriminatory fashion. Many studies indicate that African-Americans were several times more likely to be suspended or expelled than other students for the same offenses.

“The result of those studies is that more school districts have removed discretion in applying the disciplinary policies to avoid criticism of being biased,” said Ronnie Casella, an associate professor of education at Central Connecticut State University who has written about school violence. He added that there is no evidence that zero-tolerance policies make schools safer.

We don't accomplish much, but we scare the hell out of everyone and turn our children into criminals for behavior that used to be considered just what kids do. (And yes, way too often those are minority kids we're sending down the school-to-prison pipeline.)

It's what comes from rule by fear and politics by plebescite.

Last night at dinner we were talking about revolutionary movements and activists and demand for change. In the 30s it was labor. In the 50s, 60s, into the 70s it was blacks and anti-war activists and women. Those same folks are still out there, still struggling (along with lots of others, of course, most powerfully at the moment the LGBT community). But the real action today is with the Tea Party folks.

But they take us back, not forward. They push the fear, not the freedom. And what happens next?

I've told this story before. Back in 2004 or 2005, during the question session at the end of a program on how all this security invades our privacy without making us any safer, a lawyer (a lawyer!) stood up.

What can you do to make me feel safer on an airplane?

The answer, of course, is

Not a damned thing.

I can't do anything because I don't have any power to adjust airline or airport security and actually make it more secure. And, more importantly, I can't do anything to make him feel safer because he's asking the wrong question.

He'll feel safer when he believes he is safer, I suppose. And that has nothing to do with actually being safer but everything to do with the illusion of safety. Who needs freedom, liberty, privacy when you can have, instead, tyranny without street crime?

Flyspeck Island, anyone?

---------------------
*Don't believe that rot about how the body scanners images can't be abused. They can be. They will be. They are being.

Preventing the last war

Brian Tannebaum asks the right question:

What if he tried to blow up the plane at the beginning of the flight?

He's responding, of course, to the new rule that will prevent people from standing or going to the toilet or having anything in their lap during the last hour of a flight. The rule is a response to the alleged effort to blow up a plane from Amsterdam as it neared Detroit.

Look, we're doing this backwards. We invest our energy, resources, and ingenuity in preventing what already occurred, or failed, rather than stopping the next thing.

• 1993: A car bomb in the underground garage at the World Trade Center. We beef up security in underground garages.
• September 2001: Some 19 men use box cutters to seize control of airplanes and fly them into the World Trade Center, the Penatagon, and a field in Pennsylvania. Underground garage security didn't help. We make it harder to take box cutters on airplanes.
• December 2001: Richard Reid tries to blow up airplane with explosives in his shoes. We begin searching shoes for explosives.
• December 2009: Farouk Abdul Mutallab allegedly tries to blow up airplane with explosive sewn into his underwear. To do this, he stands up near end of flight. We prepare to search underwear and force people to sit near end of flights.

But, see, they'll do something different next time.

The suicide terrorists, whether they're part of a network or just random crazies, work forward. They abandon what didn't work before and come up with a new plan. That's the whole point - they keep us on edge because we don't know what will happen next.

The TSA security gurus, on the other hand, work backward. They look at what didn't work before and devise systems to ensure that it won't work next time, either. The result inconveniences and annoys. It doesn't make us safer.

I've written before of the man who asked me, after a talk I'd given questioning the wisdom of racial profiling and of TSA confiscating nail clippers as a means of preventing terrorism, what I would suggest instead that would make him feel safer on airplanes. I said (more politely than this, I hope) that as a lawyer rather than a psychiatrist there was probably nothing I could offer for his mental health, but that the issue wasn't about feeling safer but about actually being safer. The distinction isn't subtle, but accepting it may be.

Each time someone whispers "terrorist," we cede a little more. Nail clippers and tweezers, shoes, belts, water bottles (the dangers of Aquafina cannot be overstated), pillows f'rgodssake. As Scott Greenfield notes, next they'll make us fly naked.

Scott sees this as silly. We'll all fly (naked) with our eyes closed so that we needn't look at the ugliness of our fellow passengers. Actually, it may be brilliant. If we have to fly naked, far fewer people will fly. With no passengers, we can be sure that the only passengers will be terrorists. We can then refuse to let them on the planes. With no one to fly, the planes will be grounded. AND THEN THEY CAN'T BE BLOWN UP IN THE AIR!

Oh, sure, it'll kill the airline industry. But that's a small price to pay for preserving freedom. And for protecting us against something we're far less likely to experience being attempted (unsuccessfully, by the way) than we are to be struck by lightening.

Anyway, it'll be great for developing the teleportation industry.

Beam me up, Scotty.

Gitmo On The Plains

Lets track the three kinds of prisoners at Gitmo.

1. Khalid Shaikh Mohammed and four others, against whom the government feels they have really good evidence, are to be criminally charged and tried in federal court.
2. Another group, against whom the evidence isn't so good will be tried before military commissions.
3. A final group, against whom there's apparently no evidence, will simply remain prisoners forever.

Such is American justice in the Obama administration. The more clearly you're guilty, the more fairly you're treated. That seems backwards, perhaps. Indeed, the whole thing is not just backwards, it's perverse.

Consider what happens if the plan goes awry. Imagine, somehow, that KSM is acquitted. What then? Daniel Newhauser at The BLT: The Blog of Legal Times, covering a Senate hearing last week at which Homeland Security Secretary Janet Napolitano testified, noted that John Cornyn (R. Texas, former trial judge and Texas Supreme Court Justice) was worried that if KSM and his buddies were acquitted,

they might, apply for asylum if their home countries wouldn’t take them back or that they might receive special immigration rights or even legal immigrant status.

Sure. And maybe we'll make them honorary citizens and give them the keys to the city and perhaps pay them damages for the time they spent at Gitmo.

Not to worry, Napolitano told him. They'd be deported immediately.

“In the off chance that there were to be an acquittal for these individuals, they would immediately be put into removal proceedings and be deported.” She said, “They are paroled…into the country only for the purposes of prosecution. There are no immigration benefits that accrue to that.”

Cornyn wasn't satisfied.

[W]hat guarantees do we have that he can be detained indefinitely, either here or somewhere else?

Napolitano said that there was really no issue because they'd all be convicted. (She didn't add, as Obama did, that they'd also be executed, but she might as well have. You know she thinks so.) But that's denying the question, not answering it. The answer of course, is that nobody's going to let them go.

If acquitted, they'll be locked up forever unless we can deport them somewhere where we'll be sure they'll be tortured and then killed. Nobody will say that, because it admits the truth about these upcoming trials. Even KSM and the boys who get the proper federal criminal trials won't really get the full panoply of constitutional protections. There'll be one that's missing: If you're found not guilty, you're released.

And so we come to the news that Obama wants to move Gitmo to Illinois.

Remember that pledge to close it in a year. Remember that he won't meet that goal. But at least now he's figured out what to do with the folks there. Move them to the Illinois/Iowa border, just south of Wisconsin. There, on the plains, in the middle of the country. Thomson, Illinois. Take over a mostly empty maximum security prison and make it maximumer and extra secure. And put the folks now at Gitmo there.

The ones we don't kill. The ones against whom we have no evidence that they have done anything or would do anything but who are too dangerous to free. And the ones, if there are any, who are actually found not guilty.

Gitmo has to be closed because it's a national, and especially an international embarassment. A symbol of a 21st Century version of The Ugly American. it has to be closed because promising to close it is part of how Obama isn't Shrub and therefore somehow deserved the Nobel Peace Prize.

But there's enough Shrub in Obama that closing it is a problem for him. What to do?

Tom Parker, Amnesty International USA policy director for (counter) terrorism and human rights, put it succinctly.

The only thing that President Obama is doing with this announcement is changing the Zip Code of Guantanamo.

We're still going to be holding people forever without charges or trials. We'll just do it on the mainland.

And it's an interesting place. 55 miles south of Cuba City, Wisconsin. 116 miles north of Cuba, Illinois. Guantanamo on the mainland, right near the Cubas of the midwest.

Which, I guess, suggests that maybe there is a place to which we can deport KSM if he's acquitted. After all, there'll be all those empty cells at the original Gitmo we can stick him.

A Constitution for Me, But Not for Thee

Now that they've announced plans to try Khalid Shaikh Mohammed and four other 9-11 suspects from Gitmo on criminal charges in a New York federal court (but to try five others before military tribunals, about which more later), the forces of fear and hate are gathering.

There's Texas Senator John Cornyn, formerly a trial judge and member of the Texas Supreme Court who's supposed to believe in and have actually applied the Constitution, explaining that mass murderers don't deserve criminal trials and that since the accused are guilty, there's really no point to it except "political ideology."

These terrorists planned and executed the mass murder of thousands of innocent Americans. Treating them like common criminals is unconscionable.

The attacks of September 11th were an act of war. Reverting to a pre-9/11 approach to fighting terrorism and bringing these dangerous individuals onto U.S. soil needlessly compromises the safety of all Americans. Putting political ideology ahead of the safety of the American people just to fulfill an ill-conceived campaign promise is irresponsible.

There's the master of personal integrity (don't carp; it's irony) Joe Lieberman, a graduate of Yale College and Yale Law School (does he support his alma mater press's decision to remove the images of Muhammad from the book about the effect of those images?) who's also already determined guilt, but that's OK because we're talking about "war criminals" who don't have that presumption of innocence because they're not citizens. Per CNN:

The September 11 terrorists "are war criminals, not common criminals," he argued. They are "not American citizens entitled to all the constitutional rights American citizens have in our federal courts."

OK, so Lieberman believes only citizens have (or should have) constitutional rights. It's an interesting idea that has no legal support, but then he's just a lawyer and senator so what does he know?

The truth, of course, is that it isn't about constitutional protections at all. No more than it's about safety or about the fear that somehow Mr. Mohammed and the others will be able to "rally their followers" (that's Joe, again) from within the federal court.

Scott Greenfield rightly explained that it's all bull, a political smokescreen blown by people who don't really believe in the Constitution - at least not ours - when it's inconvenient.

Don't blame Cornyn and Lieberman for seizing the opportunity, but question why anyone would take them seriously. For better of worse, the United States has developed a methodology for determining whether anyone who has committed an offense against our nation. Theoretically, this methodology comports with the demands of the Constitution, the fundamental framework for the operation of our government and its assertion of authority over others. These Senators took an oath to uphold this Constitution.

Yet they jump through hoops, blurt out inflammatory claims as if our system only applies to "common criminals," and seek to delude the public with false claims that the system upon which American justice is grounded is suddenly incapable of dealing with an incoming flight from Gitmo? They suggest that there must be another secret America, where trials are conducted in secret to protect our ears from the evils of torture and our people from the threat of still more jihadist bombers?

Here's a newsflash. We already know about the waterboarding. It's been in all the papers. We know that KSM was subject to waterboarding 183 times. That's old news, and the disclosure at trial isn't going to surprise anyone.

Here's another newsflash. If the jihadists want to blow up a building to show us what they think of our system, our "freedoms", there are plenty around. We've got a country filled with big building built from Indiana limestone, and even if KSM is tried in a newly built courtroom on the Island of Cuba, they can still blow one up in Nebraska and capture our attention.

About the only one who's being honest is Kent Scheidegger who admits it's about wanting to kill.

A life sentence for KSM would be a travesty of mammoth proportions. It's bad enough that we have Charles Manson and his classmates of the Class of '72 grinning at us from their inadequate punishment, but to have this killer of thousands do so is close to unthinkable.
. . .
But isn't death so obviously the right punishment for KSM that we don't need to worry about that? No. Although people so adamantly against the death penalty that they would vote against it in every case are supposed to be screened off the jury, some simply lie when questioned about their attitudes.

[That last is an interesting question. Who lies more to get on capital juries: Abolitionist types who want to be on the jury so that they can prevent an execution or pro-death types who want to be on the jury so they can ensure one? Peremptory challenges exist, in part, to help get both sets of liars off the jury. On my side of the aisle, the belief is that the killers lie and the abolitionists tell the truth. If there are actually meaningful studies that try to answer the question, I haven't seen them. End of digression.]

It's true, of course, that most capital prosecutions end in life sentences. Scheidegger thinks they shouldn't, and that they do only because the system doesn't work as it should. He's open about that, and doesn't shy away from it. (He actually includes a list in his post of several men who got life sentences but should, he believes, have gotten death.) It's not about the criminal for him, not about legal niceties like individualized determinations and mitigation.

You did a bad thing. You die.

There's a simplicity to that, a symmetry, many find pleasing. I don't share it, but I understand it. Except it's not our system. We chose, over 200 years ago, a system that says even bad guys get treated well. Some idea of equivalence sets a maximum. It never sets a minimum. And everyone gets treated fairly - not just those who might be innocent.

Hell, it's not even clear innocence is relevant to the law, let alone to the Constitution. The rights attach regardless. The system is ours because we're better than to not have it. And if you want the system, well then, you want some killers not to fry. Even if you want them all to fry.

And see, here's the thing. Those jurors who couldn't unanimously agree on death? The ones you think are dishonest or chickenshit or would-be terrorists or who-knows-what? Yeah, those of your peers? Maybe they're right. Maybe the system was working exactly the way it should when Zacarias Moussaoui got life instead of death, even if Kent Scheidegger thinks it's obvious he should have been killed.

And maybe the real danger to the system isn't that Khalid Shaikh Mohammed won't get death but that five other guys from Gitmo won't get real trials at all. Because Eric Holder's comfortable enough with the odds of at least getting Mohammed convicted, but the guys he's not sure about - they get a system with lower standards.

See, he and his boss, they believe in the Constitution a little. Unlike Bush and Ashcroft and Gonzalez and Mukasey and Cheney and John Yoo and the rest of the gang of however many they think it's OK to actually provide constitutional rights sometimes, when you're sure enough of what the outcome will be. But ultimately, they're with Cornyn and Lieberman. When it gets dicey, go with the tribunals. Better to get a conviction and a death sentence than to honor our system.

Next up, Dr. Hasan.