On Torture And War Crimes, Part Two, Or, Dr. Addicott And I Find Common Ground

When last we met, Gentle Reader, it was to work through a series of legal precedents and statute law; the goal of the exercise being to determine if we could or could not define waterboarding as torture.

We have the kind assistance of Professor Jeffrey Addicott, who has provided us with his written testimony from his recent appearance before the Senate Judiciary Committee and a personal interview, where he walked me through some of his thinking on the matter.

Today we’re going to take a look at the precedent that he has used to reach the conclusion that waterboarding is not torture.

It’s also possible that the analysis may result in the discovery of a bit of common ground…but as I noted in Part One, it’s common ground that neither one of us might have seen coming.

To begin, a quick review from yesterday:

Dr. Addicott wants you to know that waterboarding is not torture.

He relies on the argument that since the “Five Techniques” (“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water) used on Irish prisoners by the United Kingdom were found not to be torture by the European Court of Human Rights, and waterboarding is not worse than the five techniques, it logically follows that waterboarding is not torture.

Although waterboarding might be cruel, inhuman, and degrading, Dr. Addicott would remind you that legally, torture requires severe physical pain over an extended, but unspecified, period of time.

He also notes a lack of lack of legal precedent specifically defining waterboarding as torture in either US or international courts.

I asked Dr. Addicott why 18 USC § 2340 (which defines torture, in part, as “…an act…specifically intended to inflict severe physical or mental pain or suffering” and defines “severe mental pain”, in part, as “the threat of imminent death…”) wouldn’t be the definition of torture that should apply.

His basic responses were that the alleged acts took place overseas to non-US citizens, therefore there is a jurisdictional issue; and that a lack of specificity in the statute males it unclear whether waterboarding would be torture.

Here’s how he expressed it to me:

“Those are words, those are descriptive words…that only find meaning when we have a court define what that means; that’s the whole problem with our Anglo-Saxon tradition, is that you have words that are put out in statute but what, you know, what does “severe” mean, what does “prolonged” mean, is it five minutes, is it 10 minutes…is it four drops to the head, is it three drops of water on your head, what does it mean?”

He also wants you to know that we do the same thing to our own military personnel who undergo “Survival, Evasion, Resistance and Escape” (SERE) training, which indicates the procedure isn’t torture.

He also tells us in his written testimony that the “shock the conscience” standard should apply to define torture.

Additionally, he cites Blefare v United States (362 F.2d 870) and Leon v. Wainwright (734 F.2d 770) to suggest that coercive interrogation is already permitted under US law.

With the catch-up complete, let’s have a look at Dr. Addicott’s assertions.

Right off the bat, Dr Addicott does correctly assert that…

“…the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3)”.

…in the opinion of the European Court of Human Rights.

However, there is precedent that declares waterboarding is torture, as another international tribunal saw things a bit differently.

You undoubtedly are aware of the Nuremberg Trials, which addressed the conduct of officials of Nazi Germany at the end of World War II. A similar process took place to bring Japanese officials to account, the International Military Tribunal for the Far East. Here’s what they had to say about waterboarding:

“Torture and Other Inhumane Treatment

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment [euphemism for waterboarding], burning, electric shocks, the knee spread, [page number removed] suspension, kneeling on sharp instruments and flogging.

The Japanese Military Police, the Kempetai, was most active in inflicting these tortures. Other Army and Navy units, however, used the same methods as the Kempetai. Camp guards also employed similar methods. Local police forces organized by the Kempetai in the occupied territories also applied the same methods of torture.”

Dr. Addicott feels that 18 USC § 2340 doesn’t apply because the acts took place outside the US to non-US citizens…but the statute tells us jurisdiction applies if “the alleged offender is a national of the United States”.

Conspiracy to torture is also a crime, meaning that those who ordered this behavior would also face potential legal liability, even if the person doing the torturing is not a US citizen.

So what about the argument that SERE trainees are subjected to the same treatment?

The difference, I suggest, is that there is no threat of imminent death when a trainee is waterboarded, which is what 18 USC § 2340 requires.

Can waterboarding actually carry the threat of imminent death?

I know someone who can tell us.

Dr. Allen Keller, MD is an Associate Professor at New York University and the founder and Director of the Bellevue/NYU Program for Survivors of Torture, which has provided care for more than 2000 torture survivors. He’s also a member of the Advisory Council of Physicians for Human Rights.

He offered this assessment in testimony before the Senate Select Committee on Intelligence

“Water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse.”

Dr. Addicott also relies on court rulings to demonstrate that coercive methods of obtaining evidence are permissible under US law.

He points two cases for guidance. In the first, Blefare v United States (362 F.2d 870), he tells us (in written testimony) that:

“the appellants were suspected of swallowing narcotics which were lodged in their rectums or stomachs…Then, without Blefare's consent the doctor forcefully passed a soft tube into the "nose, down the throat and into the stomach," through which fluid flowed in order to induce vomiting. This resulted in the discovery of packets of heroin and the subsequent conviction of Blefare.

Unlike Rochin [Rochin v. California, (342 U. S. 165)], the Ninth Circuit refused to hold that the involuntary intrusion into Blefare's stomach shocked the conscience.

While all that is true, it’s also irrelevant to the facts of the case as it appears in the record.

First, the Ninth Circuit had no reason to reach a conclusion about whether evidence was obtained from Blefare in a manner that “shocked the conscience” because the evidence that the appeal was trying to suppress did not belong to Blefare, but to his co-defendant, Donald Michel (who had voluntarily consented to the intubation that led to the recovery of the challenged evidence).

The second reason the challenged evidence was not suppressed had to do with the fact that the searches of Blefare and Michel were held to be “border searches”.

This, from Blefare:

“No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit…Mere suspicion has been held enough cause for a search at the border.”

Dr. Addicott also misstates the effect of Leon v. Wainwright (734 F.2d 770).

From his written testimony:

“For instance, in Leon v. Wainwright the Eleventh Circuit brushed aside the fact that police officers had used "force and threats" on kidnap suspect Jean Leon in order to get the suspect to reveal the location of his victim. When apprehended by a group of police officers in a Florida parking lot, Leon refused to reveal the location of his kidnap victim (the victim, Louis Gachelin, had been taken by gunpoint to an apartment where he was undressed and bound). In order to get the suspect to talk, police officers then physically abused Leon by twisting his arm and choking him until he revealed where the kidnap victim was being held. In speaking to the use of brutal force to get the information needed to protect the victim, the Court deemed that the action of the officers was reasonable given the immediate concern to find the victim and save his life.”

It is inaccurate to say the Court “brushed aside” the use of force and threats.

What actually happened was that the defendant confessed twice—and it was that second confession that was being challenged.

The first confession…the one taken by force…was not admitted into evidence; therefore its admissibility--and by extension, the means by which it was obtained--was not an issue to be considered by the appeals court.

This, from the ruling in Leon v Wainwright:

“Meanwhile, Leon was taken to the police station. He was questioned there by detectives who had neither been involved in the threats and use of force at the scene of his arrest nor witnessed it. After being thoroughly informed of his rights and signing a Miranda waiver form, he gave full oral and written confessions of the crime. This entire process was concluded about five hours after his arrest…

…The totality of the circumstances in this case clearly confirms the finding that the second statement was voluntary.[4] The police, motivated by the immediate necessity of finding the victim and saving his life, used force and threats on Leon in the parking lot.[5] Hours later, Leon was questioned at the police station by a completely different group of police officers. These officers were not even participants in the surveillance team at the parking lot. Prior to questioning him the officers meticulously explained to him his constitutional rights. He specifically waived his right to have counsel present. The necessity of saving the victim's life, the different physical setting, the different group of questioning officers, and the meticulous explanation to appellant of his constitutional rights constituted a sufficient break in the stream of events to dissipate the effects of the first coercion. The challenged confession was properly admitted into evidence.”

There is a question of what to do if it is suspected that torture has been committed. Here is a portion of Dr. Addicott’s comment on the matter, from his written testimony.

“…those who order, approve, or engage in torture must be criminally charged. If the United States determines that waterboarding as practiced by the CIA is torture, there is no option. Under the Torture Convention violators must be prosecuted. Similarly, lawyers at the Department of Justice who approved the practice must also be prosecuted… In short, in my legal opinion, the subject waterboarding technique used on the al-Qa'eda operatives did not constitute torture and requires no binding obligation to prosecute.”

With all respect to the Professor, this looks like circular logic. To “determine” that torture occurred requires a trial, as Dr. Addicott has previously noted, yet he says here there’s no need for a trial because, by his determination, no torture occurred.

It also appears that his analysis on this point is factually inaccurate, in that there is no obligation to prosecute under either the Geneva Conventions or the Torture Convention. Here are the pertinent texts:

“Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee [sic] in any territory under its jurisdiction.”

--UN Convention Against Torture

“Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”

--Geneva Convention relative to the Treatment of Prisoners of War

The phrase “bring such persons…before its own courts” will be a subject of controversy, so let me clear it up now. In Europe, the “court” process involves the use of “investigating magistrates” who would decide if this sort of case should or should not be brought to trial; a function that, in the US, would be handled by a Special Prosecutor or the FBI and the appropriate US Attorney, possibly through the federal grand jury process.

As you can see, there is an obligation to investigate people suspected of torture…but no mandate to prosecute every suspected offense…which means, just like in a RICO case, you can round up the lower-level “actors”, convince them to “flip” on the other co-conspirators up the chain in exchange for immunity…and then you prosecute the ringleaders.

We have spent some considerable time addressing the questions around what is and what is not torture…but now we get to an issue that makes the “torture question” irrelevant.

Remember way back in Part One when I asked you to keep that “cruel and inhuman treatment” phrase in the back of your mind?

And remember the European Court of Human Rights ruling that called the “Five Techniques” cruel and inhuman?

Well, guess what?

If a prosecutor can demonstrate that waterboarding is not torture, but merely “cruel or inhuman” (a standard that only requires “serious” mental or physical pain, not the “severe” standard required for torture)…that’s a “war crime”, as defined by the War Crimes Act of 1996 (18 USC § 2441(d)(1)(B)).

And those who commit a war crime, it turns out:

“…shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

And that’s where we get to the point that Dr. Addicott and I finally reach some common ground:

Maybe torture prosecutions are bad policy.

Especially when it’s easier to prove a war crime than it is to prove torture.

Once again, we have come a long way to get here, but let’s review it all before we finish:

Dr. Addicott and I differ on where we should look for a definition of torture.

Despite the language of 18 USC § 2340, he does not feel there’s jurisdiction to prosecute under the US Code.

He does not feel waterboarding is torture, but he acknowledges that the “Five Techniques” are “cruel and inhuman”.

There is precedent in international law to draw the conclusion that waterboarding is torture which Dr. Addicott did not note in his written testimony.

Because waterboarding does create the threat of imminent death and does cause severe and long-lasting mental problems, I feel it is also torture as defined by US law.

Dr. Addicott proffers legal precedent to support his position that the use of coercive techniques does not violate US law…but when you actually examine the texts of the rulings he cites, it appears that he either misunderstands the rulings or misstates their application to this question.

He also testifies inaccurately when he asserts that all cases “determined” to be torture must be prosecuted…firstly, because of the circular logic of “determined”, and secondly, because the two pertinent texts simply don’t read the way his testimony reports they read.

But all that said, it turns out that even if waterboarding is somehow not torture…that it does not cause “severe physical or mental pain or suffering”…it appears highly likely that the technique causes “serious physical or mental pain or suffering”…which, mirabile dictu, is the legal standard for proving a war crime.

Which leads us to the one point upon which we both agree: there should be prosecutions.

Prosecute under 18 USC § 2441 or treat it like any other “organized crime” case: start inviting “parties of interest” to flip on their co-conspirators, immunize the cooperative…and if a judge and jury decides it’s the right choice, people are going to have to go to prison.

So there you go: we started out questioning how torture is defined, and we ended up at a place where, because of the War Crimes Act, that definition become less relevant, a bit of common ground might have been found, and in the search for that common ground we’ve discovered a better way to ensure that justice can be done.

AUTHOR’S NOTE: I want to offer a hearty “thank you” to Dr. Addicott for taking the time to talk to me for this story. If we wish to do serious journalism, interviewing the people in the news is critical, and I very much appreciate his willingness to make himself available during the production of this pair of stories.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On Torture And War Crimes, Part One, Or, I Interview Dr. Addicott

I can’t tell you the number of times I began a story with a plan for where it would go, only to discover that the plan isn’t going to work.

The stories sometimes seem to write themselves…but other times, the research seems to do the writing instead; this being one of those times.

When the production of this story began it was with the intention of trying to explain what should be the “controlling authority” in terms of defining torture, a precedent set by the European Court of Human Rights, or Title 18 of the United States Code.

Having reviewed both statute law and numerous judgments in law courts worldwide as well as the recent Senate Judiciary Committee testimony of Professor Jeffrey Addicott, and having conducted an interview with Dr. Addicott personally, I’ve come to two rather surprising conclusions:

It may not really matter whether waterboarding is torture…and although neither I nor Dr. Addicott might have seen it coming, it’s starting to appear that he and I might agree on one thing:

Waterboarding, whether it’s torture or not, is a war crime.

There’s a big backstory here, so off we go:

Everybody remember the Senate Judiciary Committee’s “Torture Hearings” back on May 13th…the one where the FBI interrogator testified from behind a “security screen”?

Excellent.

One of those giving testimony that day was Professor Addicott; he of the Center for Terrorism Law at St. Mary’s University in San Antonio, Texas. In his testimony Dr. Addicott suggested that the words waterboarding and torture are thrown around in each other’s company rather casually and without much in the way of law to guide those doing the throwing.

In both his written and oral testimony, he suggested the best guidance for answering the question of whether waterboarding is torture can be found in an examination of a 1978 ruling of the European Court of Human Rights, Ireland v. the United Kingdom.

Well, I read that ruling, and a wee bit of statute law…and I began to wonder if Dr. Addicott might have missed a thing or two.

18 USC § 2340 and 2340A are the sections of the United States Code that deal specifically with “Torture”. Torture is defined in the statute, and jurisdiction applies if…

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(18 USC § 2340A(c) tells us that conspiring to commit torture is also a crime.)

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

--18 USC § 2340A(a)

I mentioned that torture is defined…and here is the part of that definition that we’ll be discussing:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from…

(c) the threat of imminent death…

--18 USC § 2340

The more I kept at it, the more I couldn’t shake the feeling that it made more sense that surely the United States Code should be the “controlling authority” on the question of what is or is not torture, not the ruling of a foreign court.

I sent an email to Dr. Addicott asking two questions:

--if he might be kind enough to explain why the US Code isn’t the final authority here, and if so,

--isn’t the fact that waterboarding is predicated on a threat of imminent death enough to make it torture, based on the definition laid out in 18 USC § 2340?

After a weekend of phone tag, Dr. Addicott was kind enough to explain to me some of his thinking on the matter. Some of that conversation will be repeated here, along with excerpts from the written testimony he provided the Senate Judiciary Committee.

(I’ll be “Q”, Dr. Addicott will be “A”.)

Q: “Why is the European Court of Human Rights ruling more dispositive, when you’re defining torture, than the US Code?”

A: “…basically, the individuals that we are alleged to have tortured, I use the word alleged because I don’t believe it amounts to torture…are not US citizens.”

He also noted that because the alleged torture took place outside the US, international law applies, specifically the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”).

Q: “OK, but when I’m looking at 18 US Code, 18 US Code says “whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned.” So wouldn’t that imply that Americans, wherever they are, would be covered under the statute?”

A: “It would be hard…Regarding the shocking the conscience standard in the latest case, which was Chavez v. Sanchez, [ actually Chavez v. Martinez, (538 U.S. 760) ] if you read that case, that court did not even look at…uh…US Code in deciding whether or not shock the conscience, so I think when you’re looking at an international sphere it’s better to look at the international cases in regards to torture, particularly when you have a case that defines…uh…interrogation…”

Further light is shed on the question by reading this portion of Dr. Addicott’s written testimony:

“In the Anglo-Saxon legal tradition, we generally look to authoritative judicial decisions to define key terms in treaty and legislation. Perhaps the leading international case in the realm of defining "severe pain or suffering" in the context of interrogation practices against suspected "terrorists" comes from the often cited European Court of Human Rights ruling, Ireland v. United Kingdom. By an overwhelming majority vote (16-1), the Ireland court found certain interrogation practices (called the "five techniques") by English authorities to investigate suspected terrorism in Northern Ireland to be "inhuman and degrading," i.e., ill-treatment, under the European Convention on Human Rights, but not severe enough to rise to the level of torture (13-4). According to the Court, the finding of ill-treatment rather than torture "derives principally from a difference in the intensity of the suffering inflicted."”

(That phrase “inhuman and degrading”? Keep it in mind, as it will figure prominently in Part Two.)

The “Five Techniques”?

“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water.

From Dr. Addicott's written testimony:

“To the reasonable mind, considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques authorized by the Department of Justice legal memorandums – waterboarding – would not constitute torture (the CIA method of waterboarding appears similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).”

You may recall a reference to the “shock the conscience” standard. It’s pertinent here because of doctrine found in the May 2005 “Torture Memo” written by Steven Bradbury of the Office of Legal Counsel, quoted here:

“Given that the CIA interrogation program is carefully limited to further the Government's paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot "be said to shock the contemporary c.onscience"”

The standard came from Rochin v. California, (342 U. S. 165). Long story short, police officers forced capsules full of morphene from inside Rochin’s body after watching him swallow them. In overturning the conviction, the Supreme Court ruled:

“…that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience…They are methods too close to the rack and the screw to permit of constitutional differentiation.”

Dr. Addicott’s written testimony also notes that the circumstances of Blefare v United States (362 F.2d 870) are similar to Rochin and support his view that if forcing evidence from the body does not “shock the conscience” waterboarding must not, either.

Additionally, Dr. Addicott asks us to consider a case that originated in Florida, Leon v. Wainwright (734 F.2d 770), in which a suspected kidnapper was choked and otherwise physically abused to obtain the information needed to save the kidnap victim. Since the conviction was upheld, we can surmise that even coercive interrogations have a place in American law.

Finally, the written testimony tells us we should consider the degree of physical pain that is inflicted by the interrogation method in deciding what torture is and what it is not.

“Certainly the red thread in these definitions is a combination of two essential elements: (1) the infliction of severe physical pain to the body or mind used to; (2) punish or obtain information. International law adopts this formula but sharpens it by stipulating that a State actor must carry out the act of torture.”

Add it all up, Dr. Addicott would tell you, and waterboarding, which fulfilled a vital interest and doesn’t rise to the level of behavior in Rochin, is not torture.

Let’s stop for a moment and review where we’ve been:

Dr. Addicott tells us that waterboarding is not torture first because it’s being done outside the US to non-citizens, and secondly, because of that Ireland v United Kingdom ruling, among others, but I’m of the opinion that the US Code is the better place to look for a definition of torture.

If an interrogation method doesn’t involve enough physical pain, over some period of time, to “shock the conscience”, Dr. Addicott feels, it’s not torture.

And in his view, the fact that coercive methods are used to obtain evidence is not necessarily illegal under American law.

Once again, this has become one of those stories that will require us to take a pause and pick it up tomorrow…but when we do, we’ll take a second look at some of those court rulings, and we’ll see if there might be other precedent that matters—and then we’ll consider a section of the United States Code that might shed an entirely different light on the whole question of what whether the question “waterboarding: is it torture?” even makes much of a difference in obtaining convictions for this behavior.

There will be a lot more in Part Two, so come back tomorrow for the rest...of the story.


WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On Being American, Or, "A Hybrid? Not Unless It Has Tail Fins"

It’s great to see that people are starting to think about hybrid vehicles, but so far, they really haven’t been for me.

You know why?

Because for the most part, they have no...style.

The Prius?
If you look at it sideways, and squint, it looks more like a pepita than a car.

The Insight?
They say it’s stylish...but it looks like a Prius to me.

You know what I want?
I want someone to build the biggest, nastiest, most oversized hybrid the world has ever seen.

Something drenched with chrome, with seating for...many, and a convertible top; and maybe, if all my dreams come true: tail fins.

Something crazy.
Something ridiculous.
Something...American.

Well, guess what?

Somebody’s already gone out and had one built—and ironically, that somebody is Neil Young, Canadian.

So let me tell you what Neil Young did: lately, he’s been tearing around the countryside in a converted 1959 Lincoln Continental Mark IV that he calls the LincVolt.

Here’s the good part: it’s a “series hybrid” vehicle that gets 65 miles to the gallon.

To be more accurate, I should say today it gets 65 MPG.

The car reportedly will compete for the Automotive X Prize: a competition that seeks to award a vehicle that can (among other requirements) achieve the equivalent of 100 MPG and emits less than 200 “equivalent grams” of CO2 per mile...and the engineering team is confident they can pull it off.

Now here’s the really good part: it is truly an American car: it’s fast. It is indeed huge...in fact, it’s just about 19 feet long. And it is dripping with chrome.

Tail fins?
This car is so over-the-top it has front fins.

The interior?
The usual: tuck-and-roll, tons of dashboard...and the requisite computer-aided status monitoring system.

“If all the cars in the United States were placed end to end, it would probably be Labor Day Weekend”

--Canadian Racing Champion Doug Larson

So what, you might ask, is a “series hybrid”?

For all intents and purposes, it’s the same propulsion design found on locomotives: an engine, powered by a fuel, turns a generator that supplies power to one or more electric motors that turn the wheels. (It’s also the design that will be used in the Chevy Volt.)

The engine that turns the generator operates (as much as possible) at one constant speed. If the electric motor (or motors) that turn the wheels require extra power, additional current is provided from the electrical system, not the engine.

Constant speed operation of the generator’s engine is more efficient than the acceleration and deceleration cycles of engines in today’s cars...and because the electric propulsion system itself is more efficient than a mechanical power transfer system, a smaller engine (it can be 1/4 the size of a standard auto engine) and generator gets you more power with less energy input than today’s car engines.

In the case of the LincVolt, a variety of fuel capabilities are being built into the car, including natural gas, plug-in, and biodiesel.

Now this story did not start as a LincVolt story. The original intent of the story was to ask why someone doesn’t throw a series hybrid engine/generator setup on electric motors, lose the fancy batteries, and produce some cheap 40 MPG pickups and minivans?

Well as it turns out, there are good reasons not to do that. One reason has to do with power storage. If the car is generating power it doesn’t need at the moment, it can “reserve” that power in batteries—and when the batteries are full, the car can run with the engine and generator shut down until more charge is needed.

Later, if the car is climbing a steep hill, that extra power can be sent to the motor or motors; keeping voltage and the speed of the engine as constant as possible.

As it turns out, that same stored power can also be used to “brake” the electric motor system, making the process even more efficient.

It’s quite a cruisin’ car, the LincVolt is...and to make it even cooler, from time to time they do live webcasts from the car as it’s driving down the road...which eventually become videos that can be seen at the LincVolt website or on LincVolt's YouTube channel.

(You can also view live telemetry from the car as it operates and view a fascinating gallery of time-lapse photography of the entire “build-out” of the car from start to finish.)

Johnathan Goodwin, who did this conversion, is famous for building “Eco-Hummers” that run on biodiesel, get 25 miles to the gallon...and still manage to put up 650 horsepower or better.

Neil Young and the LincVolt appeared at San Francisco’s DreamForce Conference in November of 2008; since then the car has appeared around the country, and the website offers hints of a cross-country live-webcasting adventure to come.

So how about that?

We started with a question about generators and batteries, and we ended up with a 65 MPG multifuel/plug-in version of one of the largest passenger cars ever known to grace the surface of the planet...and in true American fashion, 65 MPG wasn’t good enough...so now they’re “kicking it up a notch” and shooting for 100 MPG and the Automotive X Prize.

Which leads me to the one and only conclusion that we can draw from today’s conversation:

When we finally take over Canada, Neil Young’s gonna fit right in.

UPDATE 5/26/09:

A commenter at the DailyKos site had questions about the methodology Johnathan Goodwin uses in his performance claims.

This is an excerpt from one of his comments:

“So, how can a car that's heavy and has a bad drag coefficient get 65mpg? Simple: the PHEV game.

Question: How much mpg does a PHEV that is running purely in electric mode get?
Answer: Infinite

Realizing this, you can see that it's trivial to give an arbitrary PHEV any mpg figure you want -- you just have it run in a scenario where you make X% electric and Y% gas, and you pick the percents. That's exactly what they've done here. Not to mention that that 65mpg number isn't for the US06 drivecycle -- it's for steady-state driving, so even if they weren't cheating, it still wouldn't be comparable to EPA figures.

I hate this sort of dishonesty, yet it's pervasive in the PHEV industry. The federal government really needs to step in and regulate it. Goodwin is a particularly bad example of this -- he always plays the PHEV game and never uses proper drivecycles.”

I sent that excerpt to Johnathan Goodwin for a response.
He did reply by email, and this was the comment I received:

“This is Goodwin, I see many out there doing the backwards math. To date i have only stated what i do in the mannor of simple math. Fill the tank, drive the car 100 miles and refill the tank. The consumption for a distance gives you your fuel econimy. I am not a fan of plug ins. I am a fan of fuel efficiancy without sacrifice in power or room. A train is one of the most fuel efficiant modes to date. This car is a posterchild to old technoligy in a new way. What i have done is made a 6k car have 500lb tourque and 50+ mpg with a 650 cu inch motor. The efficiancy of the small generator is were you get great results. Not the electric side. I only use that for the power end. I wish those that critisize would spend there time assisting the ones who are trying to make changes. We would get there much faster.”

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On Cutting Dealerships, Or, We Examine The Costs Of Selling Cars

So there’s a lot of conversation out there about car dealerships being told they won’t be selling cars for Chrysler and GM any more.

The idea, we are told, is to save the auto manufacturers money by reducing the number of dealerships with whom they do business.

I don’t really know that much about the car business; and I really didn’t understand where these cost savings would come from, but I was able to have a conversation with the one person I do know who actually could offer some useful insight.

Follow along, Gentle Reader, and you’ll get a bit of an education at a time when we all need to know a bit more about these companies we suddenly seem to own…and about the closure of thousands of local businesses that will make the news about our bad job market worse.

We know, at the moment, that Chrysler wants to close more or less 800 of its 3181 dealerships, and that the list of dealerships was disclosed as part of the company’s bankruptcy filing. The dealer relationships with Chrysler are expected to end June 9.

We also know that GM intends to end relationships with at least 1100 dealers. That list has not been publicly disclosed, and the dealer relationships are not scheduled to end until after the end of the 2010 “model year”, in October of 2010.

It is anticipated that GM will eventually cut 2600 dealers from its current network in an effort to get down to about 3600 dealers; suggesting a second round of cuts is yet to come.

(It appears that Ford is seeking to cut sales costs by about $600,000,000 annually while not cutting the number of dealerships.)

In order to protect the innocent, I’m not going to name my source for this story, nor the dealer for whom he works. For our purposes, let’s refer to him as the “dealer rep”.

So the first thing the dealer rep told me is that many of the dealers affected are “midlevel” dealers who operate in a market with several other nearby dealers; closing these dealers will hopefully reduce costs without substantially reducing overall sales in those markets.

He reports that it costs GM about $250,000 a year to support each midlevel dealer.

The costs include providing unique tools to dealers, providing training to dealer personnel, and advertising and promotional expenses.

I’m told that these are “co-op” costs, with dealers also paying a portion of the same expenses…but GM’s share, multiplied by every 1,000 midlevel dealers removed from the rolls, equals a $250,000,000 annual savings for GM.

He also tells me that many of the dealers are located in rural markets and sell a relatively small number of cars. For these dealers, there is the additional cost of having to deliver vehicles on partially empty transport trucks (or as the dealer rep put it: they’re getting paid less for the delivery than it costs to actually make the delivery).

If we assume that GM spends only 30% of that $250,000 spent annually on midlevel dealer support for these dealers, each 1000 dealers cut saves about $85,000,000 per year; if they spend 60%, the savings is about $170,000,000.

Add it up, and the potential savings for GM might be in the range of $400-500,000,000. Chrysler might expect to save roughly a third of that amount…but that would assume the composition of dealers, and the money spent, is about the same as for the GM dealer group.

(Here’s a quick bit of gossip that I have not confirmed through a second source: the dealer rep told me that some GM dealers are being cut not for lack of sales, but as a result of “customer service” issues.)

There is another group of dealers who will be cut “through attrition”. These include Pontiac dealers, who already know there will be no more Pontiacs to sell, and Saab dealers, who know they won’t be part of the GM future. There are also dealers who are (and have been) closing because of the general economy.

Hummer and Saturn dealers currently face an unknown future.

Something else you should know: the dealer rep told me that Chrysler filed for bankruptcy before terminating the dealer relationships, which may give those dealers more rights in a bankruptcy proceeding than GM dealers that were notified before any bankruptcy filing.

He suggested such a filing might occur as soon as the second week in June…but that is also something I did not confirm through a second source.

He also points out that the successful outcome of all of this is that the two companies are able to make the same sales goals as before with fewer dealers…and he has no idea whether that will come to pass or not.

As for options: the dealer rep reports that the one manufacturer seeking dealers today is Hyundai; but even if they became Hyundai dealers, a lot of stores—particularly in rural areas—are not going to be as successful selling Hyundais as they were selling Chevy, GMC, or Dodge trucks…which might turn out to be good news for Ford and Toyota.

So what have we learned?

GM and Chrysler could save substantial amounts of money by reducing dealers; that process is underway…and for some number of dealers, it’s not about sales volume as much as it’s about sales practices.

GM and Chrysler hope that they can sell the same number of cars with fewer dealers, but as of today there is no way to be sure if that will come true or not.

The biggest winners in this process might be the surviving dealers, or the Ford and Toyota dealers with whom the closed dealers are no longer competing.

The employees of nearly 3000 dealers—and the cities in which they are located--are unlikely to end up winners in this process; however, some (such as mechanics) might eventually find work at the surviving dealerships.

Finally, I apologize for the fact that this wasn’t as inspiring a story as we like to present in this space…but now that we are basically the owners of two major auto manufacturers, it’s a set of facts and figures we better get to know.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch…so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On A May-December Romance, Part Two, Or, Las Vegas, Integrated

Moulin Rouge.

The mention of that name, in the right circles, brings back a flood of associations.

Among them: a famous cabaret in Gay Paree, a Nicole Kidman movie rich in costume and set design and…well, a movie, anyway; or, if you really know your films, perhaps the association is with the 1952 John Huston “biography” film of the same name.

The one association that might not quickly come to mind, even though it should: ground zero in a battle that led to the desegregation of Las Vegas.

Today’s story will fill in the blanks that you might have regarding that association—and by the time we’re done, we’ll have covered, just as we promised last time, the 55-year history of a place that began in 1955, lasted for not quite six months, and ended just last week…maybe.

It’s another one of those American history stories you never heard before, and it’s well worth the telling…so let’s get right to it.

“Last year people won more than one billion dollars playing poker. And casinos made twenty-seven billion just by being around those people.”

--Samantha Bee, “The Daily Show”, March 10, 2005

For those of you who missed Part One, we better take a moment to catch up:

Las Vegas, as World War II came to an end, was very much a segregated city, with blacks, who by that time were roughly 3000 of the city’s total population of 20,000, literally forced to live on the Wrong Side of The Tracks (a problem that continues to create headlines even as recently as 2008).

(Irony number one: “The Tracks”, or at least 60 acres of the land upon which they used to sit, are now the site of an upscale redevelopment effort (“Union Park”) that Westside residents note has the potential to leave them even more geographically isolated than they were when The Tracks occupied the site. To further the irony, far more redevelopment money is being spent on the Union Park project then is being spent in the severely economically disadvantaged Westside.)

As the casinos began to become the major driver of the local economy, blacks were allowed to work on the properties, but they could not patronize the segregated casinos in which they worked.

This extended to the highest levels of worker, as even the entertainers who were brought in to work the showrooms were forced to seek accommodations in the Westside neighborhood…which is why the neighborhood’s rented cottages and hotels, such as the famous Harrison Boarding House, could count among their many famous guests Nat King Cole, Lena Horne, Sammy Davis, Jr. and Jack Benny’s “valet” and sidekick Eddie “Rochester” Anderson.

By the middle of the 1950s there had been unsuccessful efforts in Nevada to pass laws mandating an end to segregation in the casinos and elsewhere (oddly enough, there had never been a law requiring segregation); and it has been suggested that casinos were resistant because their customer base at the time was mainly Californians who had settled there from the Southern states, and who presumably brought their racial animus with them.

And it wasn’t as if blacks were not allowed in bars or casinos: there were several on the Westside that catered to a black clientele.

(Irony number two: it’s reported that among those were Jewish-owned properties, including the Brown Derby, the Cotton Club, and the Ebony Club.)

Want to see a product of Strip segregation history with your very own eyes? The New Town Tavern, who once hosted Redd Foxx and B.B. King on its now-closed showroom stage, has remained open on the Westside from 1955 to the present day at the corner of F Street and Jackson Avenue.

Which brings us to Frank Sinatra.

By 1953 Sammy Davis, Jr., and the other members of the Will Maston Trio, of which he was the featured player, were splitting $5,000 a week for their services…but they could not stay at the place they played. By 1954, Sinatra convinced Sammy to open for him at The Sands; and in November of that year The Will Maston Trio was not only making $7500 a week at the Frontier, the hotel “comped” their room, board, and drinks, and allowed them the run of the casino, making them the first black act to receive that sort of treatment from a Strip casino (although others report that Nat King Cole was actually the first, in 1955).

Later that same month, Sammy lost an eye in an automobile accident, and was offered $25,000 a week to play The Sands, along with what are described as “Sinatra-like accommodations”.

In May of 1955, in an effort to “change the rules of the game”, Alexander Bisno and Lou Rubin opened the Moulin Rouge Hotel and Casino on a site in between the Strip and the Westside.

Bisno and Rubin opened the property as a completely integrated facility, bringing blacks and whites in as guests and staff…and even as management and owners. Boxing great Joe Louis was both the official greeter and a partner in the venture. The great Benny Carter was brought in as musical director.

(Fun Fact: the distinctive neon signage for the Moulin Rouge was designed by one of the few women in the business at the time, Betty Willis, who also designed one of the most recognizable signs in advertising history, the “Welcome to Fabulous Las Vegas” sign.)

The hotel was an immediate and massive hit with visitors, who were treated to the best entertainment available anywhere: Sammy, naturally, played the room, along with The Platters, Harry Belafonte, Louis Armstrong, Nat King Cole, and Eartha Kitt, to name but a few.

But here’s the thing: a major reason the place was so popular was because Sinatra, Dean Martin, and the rest of the Rat Pack would head over to the Moulin Rouge, either to put on impromptu performances or to just hang out in this newly swinging atmosphere—and suddenly, the Moulin Rouge, after the other shows on the Strip had ended for the evening, became possibly the hottest joint in the world; with everybody, and I mean everybody, heading over to see and be seen with Sammy, Sinatra, Dino, and the rest of the Pack…and of course, the “Tropi-Can Can” girls.

Things got so crazy that the Moulin Rouge added a 2:30 AM “Third Show”—but within six months, the Moulin Rouge had closed its doors; possibly the victim of mismanagement, possibly the victim of an oversaturated market, possibly the victim of policies designed to make blue-collar black patrons feel less welcome…and possibly the victim of “The Mob”, who had a hand in several of the Strip hotels that were suddenly losing significant amounts of gambling business to the new hotel.

"We don't think that we, or any other hotel, should give away a $30,000 show for a Coke and two straws."

--Former Riviera Hotel Chairman Morrie Mason, in “Time” Magazine, September 19, 1955

And with that, you’d think the history of the Moulin Rouge had come to an end.

In fact, there was quite a bit more history yet to come.

Throughout the ‘50s, Sinatra had been busy working to eliminate what he called the “national disease” of bigotry. He wrote this in a July 1958 “Jet” Magazine article, “The Way I Look At Race”:

“A friend to me has no race, no class, and belongs to no minority. My friendships were formed out of affection, mutual respect, and a feeling of having something strong in common. These are eternal values that cannot be racially classified. This is the way I look at race.”

By 1959, the Rat Pack was in town filming “Ocean’s Eleven” and going after segregation in their own unique way. They would show up at a casino, and if the casino would not admit Sammy Davis, Jr. to the gaming floor, then they would move on to the next one. Since no one wanted the bad publicity…Sammy usually got in. (That same year, blacks and whites in Nevada were legally allowed to marry.)

Because so many people were pushing for integration, segregation was beginning to be bad for business, and something had to be done.

Even Nevada’s Governor, Grant Sawyer, was trying to change the culture of segregation…and as 1960 rolled around, the NAACP was applying its own pressure.

Dr. James McMillan, leader of the local NAACP chapter, announced that he would organize a series of “sit-down strikes” in the restaurants of the Strip casinos. The day before the strikes were to begin, Oscar Crozier, representing the hotel interests, met and negotiated with NAACP representatives, Hank Greenspun, the publisher of the “Las Vegas Sun”, and some assorted politicians at…wait for it…the abandoned Moulin Rouge, where the Moulin Rouge Agreement was struck, which immediately desegregated the patronage of casinos on the Strip.

“When these fellows realized that they weren't going to lose any money, that they might even make more, they were suddenly colorblind.”

--Dr. James McMillan

(The new colorblindness, oddly enough, did not extend to the Downtown casinos, and Binion’s Horseshoe was among of the last of those casinos to desegregate.)

Over the next few years, employment on the gaming floors was also desegregated, and in 1971 the State Legislature passed a law barring racial discrimination in the housing market.

Even after all that, the Moulin Rouge wasn’t through making history. The property and buildings and…casino license…passed from one owner to another, and eventually one of those owners, Sarann Knight-Preddy, became the first black woman to hold a Nevada gaming license.

The property did operate as a sort of “apartment-motel” for a number of years, and even reopened as a casino during the 1990s, but a 2003 arson fire destroyed the casino/showroom building and removed it from Preserve Nevada’s list of 11 most endangered historical sites in the State.

Even then the remaining “hotel” buildings became low-income housing…until they became too dilapidated for that purpose.

And even then plans continued to float around, including an effort that seemed to be gaining momentum in 2008 to build an entirely new project on the old site…until a bad economy and bankruptcy brought that momentum to a crashing halt.

In an ending reminiscent of something that might have happened in the movie “Casino”, on May 5th of this year, Olympic Coast Investments of Seattle took ownership of the Moulin Rouge through foreclosure…and on May 6th, another fire took out the remaining buildings on the site. Olympic Coast reports they intend to sell. (Luckily, the neon sign had been removed in the weeks before the fire to the Neon Boneyard.)

We have come a long way with this story, but here we are at last.

Las Vegas, we’ve learned, has had to deal with a history of racial segregation, and was able to break the back of that segregation through the efforts of people as diverse as local neighborhood organizers, Jewish financiers…and the Rat Pack.

That history was forever changed because one casino, for not quite six months, showed what Las Vegas could be—but as we said at the beginning of Part One, even though the casino was only open for those few months, the history it represents continues to unfold, more than 50 years later.

What happens next, no one knows…but in Las Vegas, with a piece of land and an available gambling license to work with…I wouldn’t be too quick to bet that the history of the Moulin Rouge is over just yet.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two...and with that, thanks very much, and we return you to your regular programming.

On Judicial Empathy, Or, Random Roadblocks Aren't Annoying. Really.

So a Supreme Court justice that hardly anyone noticed has announced his retirement and all of a sudden the lips of The Experts are all a-flutter with the word “Empathy”.

President Obama reports he wants his nominee to have it; and Republicans are convinced that the word is a secret code for something that eventually ends in the death of free speech, massive roundups of guns by the Secret United Nations World Police, and the Internment Of All The White People In Reeducation Camps Run By Americorps And ACORN And Gay People Who Want To Marry And Are Funded By George Soros.

It is suggested that Evil Activist Judges will trample the Constitution as they create Law out of whole cloth; and that only those who interpret the Constitution just as it was written can bring the proper attitude to the Court.

It sounds like somebody needs to come along and provide a couple of cogent thoughts about this whole empathy thing...and lucky for you, Gentle Reader, we have before us today specific examples of how the quality of empathy can express itself in Court Doctrine.

So right off the bat, a few words about how cases are interpreted by the Supreme Court are in order:

A lot of the talking heads on the tee-vee frame the Court’s job as one of basically hearing the arguments in a case, reviewing the record, and deciding whether some action of Government violates someone’s constitutional rights.

That framing ignores two huge elements of the Court’s job: resolving the conflicts between the protected rights of two groups of private citizens (for example, does the right of all citizens to have access to the “public square” for purposes of political campaigning override the right of shopping center owners to control who has access to their private property?)...and creating rulings that attempt to discern what the mood or motivation of the public might be regarding aspects of potential Court Doctrine (for example, does a particular item of pornography violate “prevailing community standards”?).

The obvious example of how all this can play out might be found in the way the Court saw things when they ruled in Plessy v Ferguson, followed later by Brown v Board of Education; in which the Supremes first ruled that “separate but equal” was just fine and then ruled it wasn’t fine after all. Lots of others will examine these cases in detail, so, instead, we shall take a different tack.

The Fourth Amendment, in requiring that searches not be “unreasonable” and that warrants be justified by probable cause, guaranteed that Justices would forever be required to interpret without clear definitions to guide them.

Let’s now examine how “empathy’ has affected those interpretations.

If you are driving north from San Diego to Los Angeles...and you’re not a Marine...you’ll be inspected by Customs and Border Protection officers manning an immigration checkpoint on I-5. It’s possible that you might be directed to a “secondary inspection” area for a search of the contents of your vehicle, based on nothing more than the hunch of the Inspector on duty.

In 1975, the Court, showing one kind of empathy, unanimously ruled that:

“The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents...”

--United States v. Ortiz, 422 U.S. 891

However, Chief Justice Burger, who generally joined in the concurrences of the other Justices, had his own “empathetic” point of view:

“Like MR. JUSTICE WHITE, I can, at most, do no more than concur in the judgment. As the Fourth Amendment now has been interpreted by the Court, it seems that the Immigration and Naturalization Service is powerless to stop the tide of illegal aliens -- and dangerous drugs -- that daily and freely crosses our 2,000-mile southern boundary....Perhaps these decisions will be seen in perspective as but another example of a society seemingly impotent to deal with massive lawlessness.”

Amado Martinez-Fuerte, who had been arrested at the same checkpoint, probably thought that the Court would continue to see things as they had in 1975...but by 1976, the Court no longer felt as empathetic towards the concept that consent or probable cause...or even reasonable suspicion...was required for vehicle searches as they had the year before:

“To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens.”

--United States v. Martinez-Fuerte, 428 U.S. 543

This ruling is particularly significant in that it allowed the checkpoint to operate under a general “warrant of inspection” (a device usually used only to allow building inspections and the like), and for the evidence obtained there to be admissible against individuals in criminal trials.

However, the plain text of the Fourth Amendment seems to take a different view, stating that:

“...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

By this time, Thurgood Marshall had left the Court (his empathy demonstrated perhaps best by the fact that in 1954 he had argued—and won--Brown v Board of Education before the Supreme Court); and the new Court ruled 7-2 in favor of the Government’s position in Martinez-Fuerte.

You’ll recall that we discussed the fact that the Court often has to determine the public mood. Here’s a very specific example:

The Court, in deciding that the immigration checkpoint was not an “unreasonable” search, felt no empathy toward the idea that being stopped every day would bother any commuter who was legally using I-5 several days a week, nor to the concept that the delay of legal commercial traffic would be bothersome. Their sole concern was that the motorist would view the checkpoint as “legitimate”:

“Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere....The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops...”

(A quick Fun Fact: the location of the checkpoint near San Clemente appears to have been chosen specifically because it allows the stopping of virtually all traffic between San Diego and Los Angeles. You might think setting up a checkpoint to stop all traffic is a bit arbitrary...and I would agree with you. The Court, obviously, did not.)

The ruling in Martinez-Fuerte also does not display empathy with the Defendants’ assertions that being ordered to “Secondary Inspection” is intrusive...even if there for no reason at all to suspect the vehicle--or even if the reason for the stop is entirely race-based:

“The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby "stigmatizing" those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals - rather than questioning the occupants of every car - tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public...

... Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry...we perceive no constitutional violation...As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol...officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”

And with that (and a few cases to supplement the concept), the idea that the police require an actual reason to stop people and then conduct searches and seizures has gradually faded into a quaint anachronism of history.

So where does all this leave us?

Well, how about this: it leaves us more aware of the fact that there are rarely “simple” interpretations of the Constitution. Rather than just relying on the plain text of the document, the Justices, using the sense of empathy they’ve developed throughout their lives, interpret and create new law in each and every case.

It should leave us more aware that the arguments made by those who support “strict constructionists” for the Court reflect less of a desire to remain pure to the principles of the Constitution, and more a desire to advance very specific, and often radical, policies that favor Government over the People who are supposed to be its master—policies that are often based more on a sense of fear than an appreciation of the strength of the system their new policies seek to “save”.

Mr. Obama is absolutely correct in seeking a Justice with “empathy”.

Let’s just hope the one he picks has the kind of empathy that, for a change, advances civil liberties, instead of sending them to the sort of “Guantanamo Chainsaw Massacre” that Justice Scalia finds so in keeping with his sense of empathy.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two...and with that, thanks very much, and we return you to your regular programming.