The Problem with strip searching is that we have a problem with strip searching

This years' Supreme Court decision in Safford Unified School District #1 v. Redding was a sexy one for the press. It involves the strip searching of a teenage girl by female school employees at the direction of a vice principal in an effort to see if she was hiding any pills. Naturally, the media would be happier if it involved some corporal punishment or lesbianism, and no doubt readers of this blog would as well, but, compared to a case about anti-trust or interpreting pre-emption clauses, this is the Holy Grail and I can already picture the Wednesday Night movie. Although I just posted on Miranda, with the Supreme Court's calendar winding up for the year, one more won't hurt. I might even get around to a year end summary in a few weeks.

Of course, the established media (so, excluding bloggers, etc.) does not really cover Supreme Court, or actually any legal cases in any kind of analytical fashion; they almost never go into the legally reasoning underlying an opinion, but cover only the broad decision, subject to political spinning. They do this for good reason. They are after a share in the market and they correctly surmise that most people don't want to know nitty gritty details, particularly if dressed in some esoteric jargon, as court cases usually are.

Yet, I do believe that there is a moderate ground and that some people do want to know something more than just the headlines about these cases. Many blogs do that, some written or hosted by law professors, but I'm not going to engage in a blow by blow account here either, but just lay out the main arguments like so many after dinner mints on a bed so that I can also blather about what interests me - the political and ideological anchors surrounding most of these judge's ankles, and, the social values underlying these cases that say more than the decision.

I wasn't following this case, although I had heard it was coming up. I learned of the decision when one of my left leaning friends (he called himself a kind of socialist during the last election, admitting that his deep hatred of Bush had made him so irrational - his word - that if all Republicans and Democrats had suddenly switched parties the night before the election, he would have still voted straight Democrat) wrote me the other day to mock Justice Thomas for dissenting in this case for finding it okay to "strip search" a girl. I wrote back that unlike my peers, I was unable to come to a conclusion about what I thought about the case without reading it. Although a sarcastic and condescending reply, it was appropriate, and, at risk of singing my same old song, it is partiality to political parties or movements which makes us even more gullible and obtuse than nature would have it.

When I did read the decision, later that day (to my relief, it was not one of the longer ones, even with four judges opining) I wrote to my friend to say that I agreed with the majority's judgment, but not for the reasons given by Justice Souter and that Justice Thomas' opinion (actually part dissent and part concurrence with the majority), with which I disagreed, actually had a lot of reason in it, in some ways more reason than the others. He certainly applied more analysis as you can only see by actually reading the opinions. One thing he didn't seem to be concerned about as some media outlets (and my friend) implied, was a desire to see young girls stripped and searched. One could argue, reading his opinion, that he shows more concern for young people than any of the other judges.

There is irony in this case too. For Justice Thomas, who came to this court through a gauntlet of sexual hysteria in his confirmation process (and, as I have written before, I believe the stunningly mild allegations about him were true, but were also completely irrelevant to his fitness to be a judge), seemed alone of the justices to analyze it without sexualizing the issue and by applying a set of principals he has long stood for and pragmatism. For that, he would, of course be criticized in our culture, because we tend to sexualize, or over-sexualize, anything we can and then publicly recoil from it as if "those" people are at it again.

Apparently, if you don't sexualize the strip search of a female student, you should be horse-whipped out of the Supreme Court, possibly in the minds of many if not most Americans. No doubt empathy for the young girl played a large roll in the opinions of the other eight judges who did not side with Thomas. The question is, one conservatives want answered, is will our empathy towards students in general lead us to "babying" them in ways that will, in the end, harm them. Justice Thomas believes so.

Reading the headlines, even the stories written about this case, and likewise the television coverage, one gets the feeling that this poor sweet high school girl was taken by a group of predator-like school officials, and stripped bare before them to pointing and laughter for no good reason. Not so. You can easily picture her nude, red cheeked, with one arm across her breasts and one covering her private parts. Not what happened, of course. And, she certainly wasn't picked out of the school directory by pathological monsters either.

As Justice Souter himself pointed out, a week earlier a student reported to the principal and vice principal that some students were bringing weapons and drugs into school. The student had taken one of the pills himself and it made him sick. He later gave the vice principal a white pill he had gotten from a friend of the claimant (Savana Redding) named Marissa and told him that other students were planning on taking the pills at lunch. At this point, I hope, this case doesn't seem like it's about sex anymore to you, because it really wasn't. It was about drugs and weapons.

After the nurse identified the pill as prescription strenghth Ibuprofen, Marissa was called out of class and the teacher turned over her day planner which contained knives, lighters and a cigarette to the vice principal. When Marissa turned out her pockets there were several Ibuprofen's and also a blue pill which turned out to be over the counter Naproxen. Possession of these materials were not criminal, but violated the school's zero tolerance drug policy. Marissa said she had gotten the pills and planner from Savana Redding. She didn't say when she was given them or if Savana had more of them.

Marissa was given what is now called a "strip search". Justice Souter acknowledged that it was hard to give a label to the search, but he thought "strip search" was fair terminology. I don't because it is deliberately provocative, although it is half right. Marissa, and later Savana, was asked, in the presence of the female nurse and a female administrative assistant, to take off her outer clothes and shake out her bra and underwear. The court said that parts of the breast was visible. Given the description, I have trouble believing it was more than might be visible in a bathing suit and, if this school had communal showers, certainly a lot less than that.

After Marissa displayed the pills, Savana was called to "the office" (remember that dread summons?) and shown the day planner. She admitted it was hers, but said that she had lent it to Marissa and she also didn't know anything about the knives, etc. She also denied knowing anything about the pills when she saw them and denied that she was giving them to students. She voluntarily agreed to have her own stuff searched and then went through the strip search, all of which revealed nothing. None of the judges was particularly descriptive about how that part of the search happened, but it appears it was not coercive in the sense that she was ordered or directed to take off her clothes. However, in fairness, a teenager in school might feel the same coerciveness that an adult might find in a police station.

Savana's mother brought the action on her behalf claiming a 4th amendment violation; that is, her daughter was subjected to an unreasonable search by the school. I stop here for the briefest of tutorials. The 4th amendment to the constitution requires that there be "reasonable cause" for a search (or seizure) and that a warrant be obtained. Without going into detail about the many exceptions for getting a warrant that the courts have allowed which common sense, but not the text of the constitution, would seem to allow, that is all there is to the rule. Applying it to cases is the hard part, particularly as people and also judges rarely agree on what is "reasonable".

The Supreme Court has determined over time that our 4th amendment rights are determined by factors outside the text of the constitution. A lot of it has to do with a presumed expectation of privacy. For example, you are presumed to have a greater expectation in your home than in public, with a locked box than with an open bag, etc.

The high court has also repeatedly taken notice that we have schools for a reason, and that they have a mission to teach our students which could very easily be squashed by allowing them too many rights (and, no doubt, policy-wise, this is true - whether it is constitutional is another question). Thus, they have decided, without the need for a constitutional amendment, that you don't need "probable cause" to search a student, you just need what is commonly called "reasonable suspicion". How to tell the difference between reasonable suspicion and probably cause is anyone's guess. But reasonable suspicion is the same standard which would allow a police officer to pat you down for weapons on the street if his training indicated to him some probability that you might possess a weapon.

In any event, a prior case had led to the rule that a search in school is deemed permissible when the search methods are "reasonably related to the objectives of the search and not excessively intrusive" in light of sex and age and what rule was being broken. If you are thinking that this is a fairly vague standard, you are right, but many legal standards are as vague or vaguer.

Justice Souter points out that school officials, like parents, may overreact in an effort to protect their children, but that because the school is part of the state, they are prohibited from doing certain things by the 4th amendment in ways that parents are not. Finding that there was little here in the way of danger (the pills were relatively harmless, he wrote, each was like taking an Advil or an Aleve) and that although there was some small possibility of finding pills in Savan's underwear, there was not enough evidence that they would likely be there. Thus, applying the test, he could not find reasonable suspicion that she was hiding contraband or that this was a reasonable search to do considering the circumstances.

However, since the law concerning this issue did not appear to him to be well settled, and it was not clear to the school officials that they were violating the constitution, the majority ruled that the officials would get what is called "qualified immunity" and were not subject to liability (although the school might). That is, they wouldn't have to pay money damages. This, my dear readers, makes me laugh, as I wonder if Justice Souter thinks that the issue will be any clearer to the next high school principal unless the exact same fact pattern comes up. This would have been clearer - no stripping kids down to their underwear unless it is an apparent danger to their or someone else's harm, like, a weapon or a more significant drug than aspirin. While the judges are right that school officials shouldn't be put in a position where they have to decide whether certain drugs are dangerous enough to be a concern, they certainly can know that a student sitting in the office with someone watching isn't going to suddenly reach into their underwear and swallow an Ibuprofen, which will cause them to froth at the mouth and expire.

Justice Souter did do some legal analysis, if not much (although this was his last case) which is more than we can say for Justice Stevens who, thinking it mostly unnecessary, wrote a short concurrence, the highlight of which was "I have long believed that ‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitu-tional rights of some magnitude.’” There is some wisdom in that.

Of course, it was not a nude search at all and he was deliberately being provocative. We can expect more specificity from a Supreme Court Justice. However, I have no doubt that I would have been mortified if asked to strip to my underwear some some 37 years ago and that my daughter would have been mortified under the same circumstances as well just a few years ago. I'm guessing most teenage kids would although others would find it fun. In any event, Justice Stevens would have withheld any immunity for the school officials, apparently thinking them bad guys who needed to be taught a lesson. Justice Ginsburg, at present the only woman on the court, agreed with Stevens. That seems too blood thirsty to me - forcing school officials to fork over money when they were trying to do their job in protecting students. If they went over the top, and I think so, they did not do so without any reason and it was not malicious.

Thomas' opinion was quite different and he was left Rudolph-like, without any other Justices to join him in his opinion - not even good buddy, Antonin Scalia. This is no surprise. As is often true, this year, Justice Thomas was roughly four times as likely to be the only holdout on an eight to one opinion than Justice Ginsburg, the next most likely Justice to do so. That's a big number.

Justice Thomas did not find the partial strip search (what I would call it - not so hard, Justice Souter) violated the constitution. As he has written in other school cases, he really doesn't believe that school children have many constitutional rights (a position I find extreme and so far removed from the text of the constitution that it is an absurdity for a so-called "strict constitutionalist" like Thomas) but its a position that has some policy reasons behind it. But, I will let him speak for himself:

"The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.”

While grudgingly acknowledging that the kids have some constitutional rights under the court's "precedents" (meaning, he doesn't think so), he notes that "(f)or nearly 25 years this Court has understood that “[m]aintaining order in the classroom has never been easy, but in more recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. . . . In schools, “[e]vents calling for discipline are frequent occurrences and sometimes require immediate, effective action.”

As grudgingly, he applied the same test of reasonable suspicion and reasonable relationship of the search to the "crime" that Souter used, but looked at it from the school's perspective. The law recognizes, he tells us, that, unlike judges, school officials work in the actual environment and thus have a common sense understanding of student behavior that judges do not and they are allowed to make decisions based upon it.

For example, in this case, and the majority ignored these facts, the school administrators knew that quite recently a student had ingested a prescription pill he obtained from another student and spent a few days in intensive care. I'd like to highlight that - a student took one of these seemingly innocent pills and was sick enough to go into intensive care. In fact, the school had a history of on campus drug and alcohol problem that it was struggling to deal with. One of the ways they did this was to have a zero tolerance program for drugs and alcohol.

At a recent school dance, alcohol was found in the girls' bathroom and both Marissa and Savana were with a group of girls who reeked of alcohol. Another student reported having gotten sick at a party at Savana's house where she served hard alcohol. In this case, they had actual evidence of a pill from the same student who had become ill and he was the one who reported the lunchtime deadline (probably the reason, at least in their minds, that they didn't call the parents or get a warrant). The school was led to Marissa by a student who had gotten a pill from her (admittedly) and when she coughed up the other pills, she fingered Savana. Thus, neither Marissa nor Savana was picked out of a hat. There was common sense reason to believe they were dealing or at least distributing drugs that put at least one student in the hospital already. Ironic to me, not one of the judges seemed to think that the knives that were found were of much importance.

Given the lunchtime deadline, how unreasonable was this so called strip search (a term Thomas quarrels with, again not without reason - however his belief that a strip search requires nudity is also highly questionable)?

So, Thomas concludes, if there can be a reasonable suspicion that Savana had pills that might be given to other children at lunch, what is wrong with looking in places that it might be concealed, which is only the standard applied in 4th amendment cases? Certainly drugs or paraphenalia can be hidden in underwear. It's a natural place to hide it and I doubt there is a kid so innocent he doesn't know that. Even I knew it, and if there ever was an innocent teenager, it was me.

When I was about 16, a friend asked me to return a hash pipe to another friend - I was very reluctant to do it because I didn't do drugs (I still don't even know what hash is) and I was sure that I, of course, would be caught as soon as left the donut shop we were in. Although I was not a drug person (you never would have guessed to look at me) I did believe that people had a right to do it if they wanted to (still do). So, idiot that I was, I shoved the pipe down my underwear. No more than ten steps outside I was stopped by the police who pulled right up to me and my friend (who had given me the pipe) as if it were a movie and we were asked for identification. I had none, and said, given my jockey shorts full of hash pipe - "Hominahominahomina". If my friend hadn't had identification on him, I might have been frisked, illegally or not, and subject to a lot of punishment and embarrassment (and confirming many people's suspicion that I was a drug addict).

Thomas doesn't need my story. He rattled off a long list of evidence that this is where people hide their drugs. He also spent a lot of time rattling off the proof of the dangers of abuse of prescription drugs to children in schools, which did not seem to concern anyone else. The statistics are alarming, including that 1 out of 5 high school students admit to using prescription drugs without a medical reason, that prescription drugs amount to nearly 1 out of 4 of drug related emergency room visits and 1 out of 5 drug related deaths. Had Justice Thomas had another couple of weeks to write his opinion, he would have had much more evidence from very recent Congressional hearings about how dangerous some over the counter painkillers are supposed to be (I personally know one young woman who died from taking too many). While it is easy to point out that prejudice, bias and other bad attitudes can be hidden by seeming compassion, Justice Thomas' opinion seems to me to be more compassionate in many respects than his brethren's. It recognizes the need to let school's control their charges and protect them from harming themselves.

As I said at the outset, there is a lot of reason in what he writes, even if I end up in disagreement. However, Thomas sometimes surprises even conservatives with how far he is willing to go in his conservative ideology. He argues that it doesn't matter at all what the rule infraction was, just so long as it was against school rules. Thus, I can very reasonably conclude, that even if the infraction was hiding a note in class in a bra, a partial strip search would have been acceptable to him. I have trouble with that. The nature of the infraction should matter. I have the same problem with the Supreme Court okaying the police handcuffing people for traffic violations, a case Thomas cites to support his position.

Thomas might argue with me that his preferred standard - that is, the school stands in the shoes of the parents - in loco parentis - would mean that a secreted note isn't sufficient grounds for a partial strip search. Of course, this refers to a concept that is not much in vogue these days - the “societal understanding of superior and inferior” with respect to the “parent and child” relationship".

But, in the end, that standard is as vague and ambiguous as the "reasonable suspicion" standard the majority used. Who knows what a parent would do. A parent who subscribes to Thomas's way of thinking, or Souter's. But, that being said, Justice Thomas does make a reasonable argument that the courts should not be substituting their inexpert judgement of which pills are dangerous enough to justify a "partial strip search".

After pointing out some dangers of Ibuprofen and Naproxen, Thomas also writes "If a student with a previously unknown intolerance to Ibuprofen or Naproxen were to take either drug and become ill, the public outrage would likely be directed toward the school for failing to take steps to prevent theunmonitored use of the drug." Does anyone doubt that is true? In fact, it is likely in this litigious environment that Savana's mother would be suing the school for personal injuries. Many would agree with her.

Nor is Thomas ignorant of all the wacky policies, particularly "zero-tolerance" policies that schools come up with. He gives a long laundry list of them, and a solution. To keep the "judiciary from essentially seizing control of public schools . . ." and to allow "teachers [to] again be able to ‘govern the[ir] pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn’” by making “‘rules, giv[ing] commands, and punish[ing] disobedience’” control must be returned to the legislatures and school boards to make the decisions. They are empowered by the parents who vote for them.

After all Justice Thomas must constantly remind us -- this is still a democracy, isn't it? Parents who aren't happy with the system can home school or use private schools, or, in the end, move. Of course, many would object that those are remedies for the wealthy and not available to most people. More's the reason to get wealthy, I expect he would say.

I've chosen this case, not because I agree with Thomas, which I don't, but because it highlights the same old way that the media covers cases and the same old way we are trained from youth to respond politically. I have no doubt that many liberals I know would have the same knee jerk reaction to Thomas's opinion (in some cases, simply believing he's evil). No analysis or consideration necessary. On the other hand, Thomas' belief that any small violation of school rules justifies stripping a student to their underwear is just absurd and also shows what happens when you are fixated on a political ideology.

Still, some standard needs to used. Ultimately, Justice Stevens was right in my mind, it should not take a constitutional scholar to realize that this wasn't appropriate action by the school. With Marissa and Savana sidelined, how hard would it have been to have called the kids' parents and have them come to school. At least have them in the room when the outer clothes come off (presuming they have a parent). If what occurred is so serious an infraction that it is a crime, then call the police and let them get a warrant upon probable cause, not reasonable suspicion, like they are supposed to under the words of the fourth amendment. If it it not that serious, well, then the kids will get away with it like they usually do.

I'm not advocating that the school needs to go to court to do most searches. There's a big difference between searching a kid's locker, a desk, a back pack or a daily planner and having them strip to their underwear. We all know this.

Of course, this case is a big win for kids who want to hide drugs in their underwear. They all no now that this is the place to hide a few drugs. But, frankly, they already knew that and I doubt that there was a lot of strip searching going on in this country anyway. I could be wrong, but you'll have to prove it to me.

So, ultimately, I agree with you, Justice Souter, as you sing your swan song -- the "strip search" should not have been done, at least without parents present, and their should not have been liability against the school officials. But, you did not draw a bright enough line and you do not apply the constitution, but your own set of values. Strip searches like these should not be done without real probable cause. Period. If it is a serious enough matter, then school officials, who aren't trained to investigate shouldn't be doing it.

But, I like this case, because it also aptly demonstrates that constitutional cases are often more about culture than they are about "law". It reveals an underlying cultural weakness which was never discussed, even though it is impossible to separate from the decision. I'm talking about our cultural hyper-sexualization of the human body. I don't abstain myself from its effects - I'm as hung up about nudity as the next guy. But, really, from our fear of female breasts at the beach (while we snicker about other cultures where women cover their hair), parents' fears that their children will see naked people on cable tv or the internet, to the Janet Jackson incident, it just gets silly. Young kids, raised naked, bathed naked, running around the house naked, one day wake up and realize that they are naked and that they should be ashamed of it. Clothes have some important purposes like warmth and containing bodily secretions, but shame shouldn't be one of them. Admittedly, it is not as bad as it once was, but we still maintain this Noadic shame about our bodies that seems to be increasing lately even as the technological revolution makes it possible to share nudity with everyone around the world.

When I was growing up, the high school showers were open. Kids showered together (not me - too hung up, shy and ashamed). I believe it was the same for the girls' showers. Perhaps that has changed. I don't know - I'm a blogger, not a social scientist. But, it would seem that it would be a better world if people weren't so ashamed of their bodies, or gag because a mother is breast feeding her kid (like I do).

We manage to go to a doctor and we take off our clothes in front of them to whatever extent is required. We undergo gynecological and rectal exams. Why is it more embarrassing to get into your underwear in front of a school nurse while they look for drugs? Times change and the mores with them. My daughter used to go to high school in her pajamas, something that would have been the utmost in mortification when I was a kid. People wear skimpy bathing suits on the beach and go to restaurants in shorts now, but we still act as if the sight of even a partially exposed female breast in front of a nurse is shocking and that these kids were put through a shameful situation. Without this sense of shame that we instill in our children, there would be no case. Arguably, in a more perfect world, there should not be. But, we don't live there. We live here and this is the culture we have. Cultures are more based on experience and custom, not logic. That is true with respect to the law as well, as Justice Oliver Wendell Holmes once more eloquently wrote.

Whatever rule of law might be applied, Justice Souter seemed to believe that a strip search was not appropriate in our culture given what the concerns were. Most of the judge's agreed. Thomas did not seem to be as affected by that particular cultural shame, or, at least found it wanting giving his concerns about drugs, democracy and school efficiency. Ultimately, it did not matter which legal standard was used, Souter's or Thomas's, because in each case, a judge could simply decide what was "reasonable," or "appropriate," or what a parent would do in that circumstance. I am sure both Justices Souter and Thomas understand that their views of the law are inseparable from their cultural influences. If not, then they could not be more wrong.

I'll leave this post with a last word about Justice Souter who has given us the court, chosing not to die in it at some justices do. He was certainly an unusual man for a number of reasons. He is known, of course, for being appointed by a Republican-Conservative and then for usually voting with liberals. He was the original "stealth" nominee, in refusing to answer many questions the Senate put to him in his hearing. He is an old school nerdy intellectual who seemed out of place in Washington and more suited to his small hometown in the mountains, a feeling with which I quite easily identify. I doubt anyone would say he didn't seem to be a decent man who worked relentlessly on his craft and that is something. I'll miss his sharp engagements in writing with Justice Scalia as they battled for cultural control of the court.

The death of the West

The stories I learned when being taught to read from Edith Hamilton’s Mythology have lasted me my entire life, and are no doubt part of the reason I am such a Greco-phile today, however little I have written about it here (I count 1 post). After American History I have more books on ancient Greece than any other, at last count, somewhere in the forties, with Homer being the overwhelming favorite followed by Herodotus. No claim to originality there as they are (presuming Homer was an actual person) the two greatest authors in Greek History, with some few votes probably going to Thucydides and maybe Sophocles.

Last year, while surfing the web (is that phrase already archaic?) for Greek topics I came across a fellow who asked if Western civilization really owed that much to the Greeks. Immediately, after recovering from my cardiac arrest, I shot off a borderline condescending (possibly more than borderline) comment back. I can no longer find the give and take, but I listed something like (and including things that may not have originated there, but were greatly developed or passed down to us), for starters:

- the alphabet you are writing in, fellah, not to mention vowels,
- logic,
- ideas of individual liberty,
- democracy,
- many of the words we still use,
- philosophy (so many topics, you can add twenty more),
- the Olympics,
- drama,
- poetry,
- epic adventures,
- mythology (we still love stories about Hercules),
- history,
- medicine,
- Christian concepts like hell and the devil, and, what is usually called Platonism,
- the screw (thank you, Archimedes),
- algebra,
- geometry,
- physics,
- public speaking,
- rhetoric,
- architecture (Ionic, Doric and Corinthian styles still being in fashion).

Probably there are lots more which readers can add in comments if they feel like it. But most of the topics I listed encompass enormous amounts of cultural information. Just the imparted language is enough by itself to make it as great a contribution to Western civilization as exists – In just the area of medicine alone there are hundreds of words, if not thousands, directly derived from ancient Greece – schizophrenia, cardiac, urinary, anemia, trachea, chiropractor, artery, biology, thorax, cytoplasm, stethoscope, and so on, seemingly forever. Many of medical terms are derived from Latin too, but Rome was indebted to Greece for much, if not the best parts of its culture, including of course, their mythology and the Latin alphabet, which is almost the same as the ancient Greek alphabet, give or take a few letters.

It is often a pastime of people, and a literary genre, to wonder what would have been if one thing was changed in history. For example, what would have happened if England had not been successful in wresting New York from the Netherlands. Would America be a different country? Would our country have become more Germanic? Would America have sided with Germany in WWI and II? All food for thought, but for another time.

How different would our world have been if Ancient Greece had been destroyed or enslaved, particularly Athens, from whence comes so much of the Greek culture to us, and most of its heritage had been destroyed or kept from us? As it would have happened so long ago, it would have had a much larger effect than the English/Dutch situation. For one thing, there would have been a much greater effect on all of the subjects I listed above, from math to medicine to drama, etc. Unbeknownst to us, the world would look much different. I leave to fiction authors the hypotheticals, of what would have happened and prefer to talk about the times it almost happened and Athens escaped by the skin of its wine sacks.

The Dark Age

There was a dark age before the one in middle European times. It lasted from some time around 1180-1100 B.C. and lasted until sometime late in the eighth century B.C. It is not even known when the ancient Greeks, or those who brought or developed the proto-Greek language there arrived, although there is much scholarly discourse which I have read some, but won’t bore you with. It is all controversial and the range of time for when the Greeks became the Greeks we know is perhaps something less than two millennia - a big spread. But, safe to say thanks to heroic archeologists like Heinrich Schliemann, the discoverer of ancient Troy and Mycenae and Arthur Evans, who uncovered the Labyrinth in Crete and so much more, we know that there was (for lack of a better word), a Mycenaean Empire existing from around 1600 -1200 B.C.

This is roughly the time that Troy, located in modern Turkey, traditionally is deemed to have fallen to the Greeks, led by the King of Mycenae, Agamemnon who is most certainly fictionalized as were likely all the characters of the Iliad. These Greeks did not call themselves Greeks, but Danaans or Achaeans or Argoans, etc. The Egyptians of that time, already an ancient race, had a name for them much like Danaans and knew of Mycenae. It is possible these Greeks are the same people who had a treaty with the Hittite Empire, who called them the Ahhiyawa, close enough phonemically with "Achaeans" for some scholars to claim so. I am not persuaded as to any particulars.

However, the Mycenaeans had a language which is now clearly understood to be ancestral Greek, but was probably a formalized administrative version for the empire's clerks, now known to us as Linear B. There is no certainty about which Greek dialects existed then, but only that, now that Linear B can be somewhat read, that the main Greek dialects either co-existed with the written language of the Mycenians or that a proto-Greek existed. Modern scholarship believes the language in general is derived from an Anatolian group (modern Turkey) known as the Luwians, although the evidence seems so slim to me that I would only say that there was a relationship between them.

About 1180 B.C. something was happening in the world. The hugely successful Hittite Empire was destroyed. Possibly Troy, a vassal state of the Hittite Empire (known in Linear B as Wilion, later Ilion, and then to the Latins, Ilium – hence The Iliad) and a huge town for its time, was destroyed by fire with it, and maybe by Greek warriors as described in Homer’s Iliad. I leave for another time what we know of that. And the world of the Mycenae either was destroyed too or just went dark. Linear B writing disappeared from the world as far as archaeology and scholarship can tell us and it appears that this is when a great migration to the islands and Asia Minor (mostly Turkey) occurred. Although writing in cuneiform and Middle Eastern alphabets existed during the dark stretch elsewhere, writing did not evolve again in Greece until some time between 800-700 B.C., when they improved on an alphabet they picked up from the Phoenicians (who picked it up or developed it from some Middle Eastern alphabets).

Know one knows who or what caused this to happen, how many people survived whatever happened (could have been a plague like the kind that almost destroyed the Greeks in The Iliad) or what changes if any resulted with the spoken languages. There is much speculation about what is called the Dorian Invasion, but nothing is clear there either, except that the traditions of it occurring and the names of descended tribes seem to match up with philological evidence. There is though a dearth of archaeological evidence to back up such an invasion. Perhaps it was very gradual.

There is enough to know though that in that cataclysmic time, the Greek culture seemed to disappear centuries before Homer (again, if he . . . ), before Marathon or Thermopylae, before Socrates and Plato, and so on, only to reappear centuries later. Although we know that the people did not all disappear, and the great colonization of the Mediterranean and Asia Minor occurred and perhaps there was an invasion by a group traditionally called the Dorians (no one is sure). But certainly, the political glue to the Mycenaean Empire fell apart or was destroyed. And aside from the language, much of what has descended to us that we consider valuable, came afterwards. If it never rekindled . . . . imagine.

Marathon

But, they survived, these Greeks, or some of them did. And they spread out in the colony system they developed and many of those were on Islands in the Mediterranean or Aegean Sea. Some were on the coast of Anatolia. And they went on to prosper and create the city states which are so well known to us like Sparta and Athens. Homer (if . . .) probably wrote down the Iliad around 725 B.C. Several hundred years went by before Greece was almost destroyed again at a place you have heard of, or at least of the long distance race which bears its name – Marathon.

The Persian Empire was a much larger and far more powerful empire to Greece’s East. There is a relationship between the languages of the two groups, and, in fact, we are also heirs of those peoples, but that is for another day. The Greek colonies on the coast of modern day Turkey, and in many of the Island became under Persian domination. In the early fifth century B.C., they revolted, and were helped out by their cousins, the Greeks of the mainland, particularly by Athens and its ally, Eretria. The Ionians, even bolstered by the Athenians were no match for the Persians and were defeated after about six years.

At that time, the Persians were ruled by Darius I, of whom we know a great deal of history and legend. He was undoubtedly a reformer (relative to his time) and a respecter of religious beliefs and other political systems. He was a Napoleon of his time, remaking legal rights and dividing his empire up into divisions, experimenting with coinage and greatly expanding the empire from present day Iran into Europe, India and Egypt. The Achaemenid empire was founded by Cyrus, undoubtedly a great king, but many consider Darius the greater of the two.

He decided that newly democratic Athens need be punished for helping, even if unsuccessfully, the Ionians and he sent an amphibious navy/army into Greece under two successful generals, Datis, a Mede, and Artaphernes, Darius’ nephew, the son of the satrap of the city, Sardis, which the Greek invaders had partially burnt. They conquered Thrace and Macedonia first, invaded Greek islands first, even capturing and burning Eretria on the Island of Euboea, punishing at least one of the two city-states that had helped the Ionians burn Sardis before the tables were turned.

At last, they turned their attention to Athens and landed in a bay off of the Town of Marathon. The Athenians were assisted this time from Plataea (which favor would be returned). From what we think we know, the Greeks first blocked off land retreats from the invaders and then, after a few more days, attacked the far numerically superior force, attacking at the flanks and then crushing their middle. Why they did this is hard to say, as if they waited just a few more days until the Spartan festival ended, they would have come to aid them (and did, just in time to say, wow, great job). But, for whatever reason, the great Athenian general, Miltiades, decided to attack (possibly because the Persian calvary took off for reasons unknown). They did not destroy the whole Persian force, but the Persians did leave (after perhaps unsuccessfully trying to directly attack Athens). Depending on who you believe, Datis did (Herodotus says he did) or did not survive the battle. Artaphernes definitely did.

The Greeks won perhaps because of surprise, their superior armor and hoplite troops, and Miltiades generalship. But, there can be no denying how close they came to the destruction of Athens. We are pretty sure there were 10,000 to 11,000 Greek hoplites present. The Persian force is much harder to figure, as reports range as high as 200,000 with 10,000 calvary, but modern scholars believe 25,000 is about right. Less than 200 Greeks died and between six and seven thousand Persians and their allies.

We are told the Athenian runner, Pheidippides or Phillipides ran 150 miles to Sparta to get their aid. According to various accounts (but not Herodotus), after the Athenians won, he ran another 26 miles home (probably 21 under modern measurements) to declare victory, and dropped dead. And from that, we get the name of the most popular long distance race even to this day.

As usual with these events, I can only go so far before I start to feel as if I should write a book, and that you can read others on. But, suffice to say, before this whole debacle, both Athens and Sparta had applied to aid from Persia to help destroy one another, and the Athenian involvement in the Ionian War resulted directly from those diplomatic attemps. Throughout the Persian-Greek wars, many Greeks would fight with the Persians and both the Spartans and Athenians tried to ally themselves with them at various times. So much for the idea of liberty.

I cannot stress enough how important Marathon was to the continued existence of Athens, which was just embarking on the greatest experimentation in mankind’s history until the American Revolution almost 2500 years later. The difference of the world had Persia succeeded, as any rationale person without a dog in the fight would have expected, can not be rationally conceived. As John Stuart Mill, the British polymath put it:

“The true ancestors of the European nations (it has well been said) are not thosefrom whose blood they are sprung, but those from whom they derive the richest portion of their inheritance. The battle of Marathon, even as an event in English history, is more important than the battle of Hastings. If the issue of that day had been different, the Britons and Saxons might still have been wandering in the woods.”

The Second Persian Invasion

So as to make this briefer, I treat Thermopylae, Salamis, Plataea and Mycale as one, but the latter three are separate battles that the West as we know it was spared (Thermopylae was, of course, lost). Darius intended to invade Greece again and had good reason to think he would be victorious. But, he died.

His son, Xerxes, picked up the torch. After having a bridge built to cross the Dardanelles to Europe made of flax and papyrus ropes (well, that’s what they had) it was destroyed by a storm. Thus, 360 ships were lashed together to make a bridge for the troops, deemed at the time a feat of great engineering. Two notable events occurred when they were leaving. First, a solar eclipse occurred, which Xerxes magi interpreted as a bad omen for the Greeks. Then, a rich Lydian who had given Xerxes gifts asked a boon, which Xerxes granted before hearing it. The man had five sons and asked that the first-born could remain behind. Xerxes kept his promise. He had the son torn in two and placed on either side of the road so the troops who were leaving could walk between the pieces of his body.

Xerxes sent, according to legend, between two and three million troops and sailors plus camp followers and including a great naval armada as well, made up of all the nations of the empire. Perhaps five to seven thousand Greek hoplites marched to the gates of Thermopylae (Greek for Hot Gates), a natural defensive position where there was only a small opening, perhaps 50 feet or so, which the invading force could march through.

When the Persians arrived they were shocked to see naked Spartans combing their long hair, although that was their custom before battle. One Spartan, upon being told that the arrows from the Persians would block the sun, said then they would get to fight in the shade. After two few days of battle it was more than obvious that eventually, the Greeks must all die. Not only were they slowly being chopped up, but a Greek traitor had led the Persians on a pass that would allow them to come from behind. Lookouts warned the Greeks that the Persians had found the pass and were on their way. All the remaining warriors were sent home except the Spartans three hundred, led by one of their Kings, Leonidas and a few hundred more of their allies, perhaps a little over a thousand in all.

The Persians won, but the prowess of the Spartans had a great effect on them and on the Greeks. Later, memorials were placed on the site, and though a defeat, it became the most celebrated of the battles. Of the memorials placed on the field, one read:

“Go tell the Spartans, stranger passing by that here, obeying their commands, we lie.”

At the same time as Thermopylae, the Greeks were meeting the Persian navy in battle at Artemisium. Fortunately for the Greeks (and see the hand of God, if you wish – I’m sure they did), while the empire’s fleet greatly dwarfed the Greek, two storms diminished them. They fought for three days and although the Greeks held their own, it would be a battle of attrition. When they learned what happened at Thermopylae, they decided to make for Salamis, an island off of Athens. There they waited for the Persian Navy (when I say this, it was comprised also of many nations under Persian rule, and included the powerful Phoenicians.

Athens had been abandoned and it was burned by the Persians. It was probably a moral victory but little else as the industrious Greeks would quickly rebuild.

By some clever maneuvering, the Athenian Themistocles tricked the Persians into attacking into the straight between Athens and Salamis. The overcrowded navy was swarmed by the Greek ships and a massacre occurred. Salamis was a much greater cause of Greece’s victory over the Persians than was Thermopylae.

As a result, Xerxes left, leaving only a small portion of his army under his senior general, Mardonius, but believed sufficient to destroy the Greeks. Not quite. A year after Salamis, the Greeks met with the Persians at Plataea (remember the Greeks who helped the Athenians at Marathon). Mardonius had sacked and destroyed Athens again. Ironically, it was this act which perhaps set off the building and intellectual stimulation which led to the golden age of Greece centered in Athens.

Once again it appeared that the Spartans would not answer the Athenian call because of a festival, but when they were convinced that the Athenians, promised independence by Mardonius, would side with Persia, they marched. By the own standards, the Greeks fielded a huge army, providing tens of thousands of heavily armed hoplites, almost half either Spartan or Athenians. After over a week of looking at each other, the Greeks decided to retreat at night to better secure their position and water. They botched it and in the morning it appeared that their army had walked off and the remainder was in disarray (that much was true). Mardonius attacked and the Spartans, Athenians and Tegeans were left to battle all by themselves. This they did with their usual efficiency and defeated another huge army, anywhere from 80,000 (some modern scholars) to 300,000 (Herodotus’ belief) man army.

On possibly the same day the Greek navy defeated defeated the Persians at sea. It ended the second and greatest invasion of Greece and set off what was probably a worse war.

For the Persian wars had given super-status to Sparta, who were deemed virtually indestructible on land and the Athens, who had the same status at sea. Not that the battles with Persia ended. Indeed, they would last almost another thirty years with Athens leading the Delian league and freeing or at least aiding in freeing the Ionian cities, Thrace, Macedonia and many other areas. Finally, the Persians approached Athens to resolve it diplomatically and a treaty was signed highly favorable to the Greeks, by then led by Pericles.

The Peloponnesian War

But more than a decade before that peace, Athens, who was militarily active and led the Delian league and Sparta, who had eventually petered out in the fight against Persia after their great contribution, were battling, beginning when Athens supported Argos in battle against Sparta. This was the start of The First Peloponnesian War. It ended in a supposed thirty year treaty that lasted about fifteen years and led to the Second Peloponnesian War, which began in 431 B.C. and ended twenty seven years later.

While I would love to write about this war, which, other than our own Revolution, I have probably spent the most time studying since I believe 1981 when I bought a copy of Thucydides, I will spare you, because I am only writing here about the survival of Greece and its importance to Western civilization.

So, I skip to the end of this bloody war in which both sides committed atrocities, violating the usual rules of war of their own time, where both sides had their day in the sun and caused destruction to their lands as bad or worse than the Persians had. In the end, Sparta won by allying itself with Persia, and by finally managing with their allies to create a navy superior even to that of the Athenians. Despite anything you learned in high school, the body centered non-literature loving Sparta won. Athens surrendered in 404 B.C.

It is hard to imagine what would have happened to our culture if the Athenians had been enslaved, as some in Sparta called for, or the men killed and the women and children enslaved as the Spartans had enslaved the Helots who lived in their neighborhood. But, it didn’t happen, and this marks (if you count the entire Second Persian War) at least the fourth time it almost happened. All of the Periclean age washed away and no chance for Socrates, Plato, Aristotle, Sophocles, Euripides, Aristophanes, and so on to be handed down through history. Or at least that is the way that might have happened.

But, Sparta spared Athens. They knocked down the walls that had protected Athens for a quarter century against their superior army. They instituted a dictatorship in place of the democracy. And . . .

they went home. A year year later Athens through out the tyrannical Counsel of Thirty, picked by Sparta, reinstalled its Democracy and carried on as ever before. A little over a decade later they fought one more battle at sea, which Athens won. Although this battle cannot possibly be called a part of The Peloponnesian War there are some few who say so, apparently not able to stand that their beloved Athenians were defeated by the body centered intellectual Spartans.

Phillip of Macedonia

And then Athens was safe for a while. At least for another few decades. For when Phillip II became King of Macedonia in 359 B.C., he soon started eating up the rest of Greece. Ironically, he stopped moving South when the Athenians alone barred his way at Thermopylae. Obviously the reputation of the place held back Phillip, because, it is doubtful that the Athenians could have held him off long (actually during the hiatus, Thebes had risen as the principal city and Sparta decidedly declined). But Phillip had an easier way. With plenty of access to gold, he began buying Athens’ allies. Athens faced off with him multiple times, but finally saw the writing on their walls. They could not compete with him. Fortunately, he had visions of conquering Persia and a treaty was reached in 338 leaving Phillip in charge of Greece, save Sparta. But, Athens was spared and Persia became the enemy, and was later conquered, as you well know, by Phillip’s son (unless, as his mother claimed, she was impregnated by a God), Alexander the Great.

Everybody else jumps in

By then, the Golden Age of Athens was over and I will fly through history now. All Athens had left was its reputation and its history. It often was on the verge of rebelling against Macedon and when it did and lost, it was spared yet again by another admirer, who like many other victors over it, had earlier lived there and loved it. Rome defeated Macedonia in a series of wars in the late third century and early second century and saved Athens, essentially liberating it from over a century and a half of Macedonian rule. Rome conquered Greece, and fought several wars there, but essentially left Athens relatively free, although part of a Roman province.

When Sulla took Athens in 86 B.C. after a very long siege during the Mithridatic War, his men raped, slaughtered and destroyed whatever they could find, but by then, the transmission of Greece’s golden age of knowledge throughout the Mediterranean and the seeds for the whole Western world, had already occurred, particularly as Athens had long since culturally “taken” Rome and much of the Mediterranean had been long Hellenized. Ironically, Athens always seemed to pick wrong when it came to choosing which Roman soldier-statesman to side with in civil wars too and Caesar himself said “How often will the glory of your ancestors save you from self destruction.”

But, even Rome couldn’t protect Athens for ever. It was repeatedly sacked by the Goths in the fourth and fifth century A.D. It was the French Crusaders’ turn in the twelfth century and here I leave off, because even then Athens was no longer the Athens of old. Whatever greatness it had had, other than a few monumental buildings like the Parthenon, was already spread to the world and would be returned to the West with breathtaking power by the Byzantines, Muslims and Catholic monks, and once again in Italy during the Renaissance.

Although nothing was left of Athens’ greatness but its legacy, it was one that has taken hold of the West as no other power on Earth ever had or would ever again, save Christianity, and that is a toss up.

Miranda on the field of battle

A few days ago a story came out that the Department of Justice, which includes the FBI, and which has to some extent taken over battlefield interrogations from the CIA, was Mirandizing battlefield captives the way “suspects” are Mirandized in America.

To say this is a stunning development, if true, is an understatement. It’s not that basic constitutional rights have not been given to foreign military prisoners before, because they have, particularly with respect to a series of cases since 9/11. But, those cases concerned the bare minimum due process standards for the prisoners.

Due process (whatever that means – but, at a minimum it means knowing what you are charged with, having a meaningful opportunity to defend yourself and a basic sense of “fair play”) has been around since the Constitution in America and in other forms in England for hundreds of years. It is arguably, a human right. There is no definition in the constitution of what it means and there have been many arguments about it. But, whether or not you agree that enemy prisoners have these rights, due process has a long history with tremendous bona fides and is one the few defendant’s rights mentioned in the constitution. And by few, I mean really very few.

Here are the basic criminal constitutional rights:

- prohibition of unreasonable searches and seizures and general requirement that a warrant be issued first upon probably cause.
- Right to a jury trial, at least for felonies (nowadays, if there’s the possibility of jail, you have the right).
- Right to counsel.
- Right not to self incriminate.
- Right to bail (not necessarily the states).
- Right to a grand jury for felonies (not necessarily the states although they all do).
- Right against double jeopardy (being charged again after convicted).
- Right to due process of law (a very vague term that seems to incorporate everything else in many judges viewpoint).
- No ex post facto crimes (criminalizing an act after the fact).
- No bills of attainder (a legislative act in lieu of being charged and convicted of a crime).
- protection against cruel and unusual punishment.

Many of these rights were greatly expanded this past century particularly during the Warren Court days in the 1960s. One should also remember that most of the individual rights contained in the constitution, particularly those in the bill of rights, applied only against the federal government and the states were free to ignore them until this past century the Supreme Court started finding that those deemed “fundamental” applied against the states as well through the due process clause in the 14th amendment.

But Miranda v. Arizona, the 1966 Supreme Court case that transformed law enforcement in this country, doesn’t seem to be required by the constitution at all, at least at face value. It has only tentatively something to do with a right not to self incriminate and more to do with making the government the defendant’s advisor. How it will now apply to foreign fighters is a good question.

I presume readers all know what “Mirandizing” someone means. The government has to tell a prisoner his rights before they interrogate him or the confession is thrown out. But there are some things about Miranda you probably didn’t know and that’s what your handy dandy constitutional law blogger here is for. After this post, you’ll know more than you wanted to about Miranda and the cases that led up to it and be able to shock antagonists at the proverbial cocktail party (I'm pretty sure I've never been to a cocktail party - have you?)

With all the discussion of torture to get confessions of foreign fighters, it is sometimes forgotten that it used to be the way they got the confessions in America from regular citizens not so long ago, within the lifetime of our older citizens. Only in 1936, just a few years before WWII, the Supreme Court got around to finding that confessions obtained by whipping and hanging violated the concept of due process in a case called Brown v. Mississippi (I’ll give the case names in case anyone cares). This was a murder case involving some black defendants and white victims where the methods of extracting confessions was so revolting, I didn’t even read them to my criminal procedure class a few years back when we were covering it. I mention the color of the defendants, because so many of these cases involved black defendants and white victims. The only evidence supporting the Brown conviction was the confession and, probably, the justices were so revolted by what the police did to him, they took the big step which seems so obvious now and ruled due process (again, whatever that means) doesn’t allow you to force a man to confess by torture.

In 1944, the Supreme Court heard a case about a man who tried to get away with having his wife murdered by an accomplice (who had already confessed) and he lasted for over 36 hours of interrogation without cracking, until, inevitably, he did. This case, Ashcraft v. Tennessee, produced an interesting dissent from legendary judge, Robert Jackson, who was also our chief prosecutor at the Nuremburg trials a couple of years later. He pointed out that Ashcraft never asked for a lawyer, that credible witnesses (a doctor, a bank president and the president of Coca Cola (no kidding)) were present at the interrogation and watched him having breakfast and appearing fine after 3 days of interrogation. Ashcraft never complained about the interrogation and didn’t claim his confession was involuntary in any way. He claimed that he never confessed, although clearly he did. Jackson’s point was it shouldn’t be automatic to find a tough interrogation unlawful and that it didn’t necessarily produce an involuntary or false confession. Police interrogation was and is the best way to get the conviction of some really evil people, and we shouldn’t throw the baby out with bathwater because some police officers went too far. Jackson wondered out loud in his dissent if the courts were heading in the direction that all post arrest interrogations were illegal.

His concern was absolutely right, of course, although he was two decades early. Justice Hugo Black, who wrote the opinion for the majority in Ashcraft, seemed to hint that all secret interrogations were, in fact, unlawful, the very thing Jackson was concerned about, and even, Un-American. He wrote as follows:

“The Constitution of the United States stands as a bar against the conviction of an individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the constitution remains the basic law of our republic, America will not have that kind of government”.

* * *

“In reaching our conclusion as to the validity of Ashcraft's confession, we do not resolve any of the disputed questions of fact relating to the details of what transpired within the confession chamber of the jail or whether Ashcraft actually did confess. Such disputes, we may say, are an inescapable consequence of secret inquisitorial practices. And always evidence concerning the inner details of secret inquisitions is weighted against an accused, particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause.”

Black and a majority thought that an interrogation such as this is automatically deemed compelled. No doubt, sleepless has a tremendous effect on a person, and, can lead to false confessions? Does anyone doubt this? It is kind of hard, in America at least, to argue that coerced confessions should be admissible, particularly looking back in time as we can now. But, when you remember that it did not appear that Ashcraft had been mishandled at all, was Jackson right, or was a day and a half of interrogation enough alone to find coercion (remember, his co-conspirator had already confessed)? The court was taking from police their most powerful tool to protective the ordinary innocent civilian from the monsters out there? What about Mrs. Ashcraft? Didn’t she deserve justice too? I note as well that the opinion was very light on precedent. Black could point to few cases at all to support his position. And everytime I think, of course that confession should be thrown out, I remember that three witnesses said that Ashcraft didn’t seem fazed at all.

In Chambers v. Florida (1954) this concept of due process was expanded. Four black defendants (up to 40 black men were initially arrested for the crime), were convicted of killing a white man. There confessions came after sleep deprivation while they were kept from any contact with lawyers or friends and under terrifying conditions (allegedly for their protection). They finally confessed and won their case.

Justice Black again wrote for the Warren Court. He had had a tough time earlier in his career when it was revealed that he was a Ku Klux Klan member in his youth. Chambers transformed him into a civil rights icon. He was proud of his authorship of the opinion which included these words:

“Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution--of whatever race, creed or persuasion.”

Fine words, and no doubt applicable to that case. I should add that in his time Justice Black stood alone among high court justices in believing that the due process clause of the 14th amendment to the constitution was a short way of saying that all of the first eight of the bill of rights, mostly those rights I listed above, were automatically applicable against the states. I couldn’t agree less and it seems not only illogical to suggest that the framers of that amendment couldn’t use the extra few words to actually say that, but, no doubt, the 14th amendment was trying to tell Southern states that they had to play fair with black defendants and nothing more. It is now a moot point, as through another route, finding that most of these rights were “fundamental,” and were applied that way through “due process”. There is little more logic to that route than Black’s, but it has developed as the law of the land, starting back early in the century when Babe Ruth was still playing ball, and I for one am glad for it, regardless of what it did to the Constitution, which had already been, and continues to be, mangled by the court.

As these due process rights of avoiding secret interrogations were being expanded by the courts, so also was the rights of the poor to have a lawyer, starting with the Scottsboro Boys cases, wherein a group of young black men, who won a fight on a train against some whites, were accused or rape of white woman, kept away from lawyers until the trial that they were rushed through, and, of course convicted. There’s a long and sad history to these cases (9 defendants and twice up to the Supreme Court), and they played out over a couple of decades. There isn’t room to go into them here (maybe someday), but, in general, after that, at least uneducated indigents in America facing capital punishment had a right to an appointed lawyer and in time to do some good for him – not just as trial was starting. Like other “rights” found to apply against the states, the right to counsel has been greatly expanded since then, famously in the Gideon v. Wainwright case in 1963, and certainly now anyone charged with a felony or even a lesser crime if there is a possibility of jail, has the right to counsel.

There are many cases that led up to the Miranda ruling, the three most important being from 1964: Massiah v. U.S. (police couldn’t use co-conspirator to trick Massiah into giving a secretly recorded confession at a supposedly secret meeting without his lawyer present), Escobedo v. Illinois (when Escobedo asked for a lawyer and was denied the right, the subsequent confession was not admissible) and, Malloy v. Hogan, which made the fifthamendment protection against self incrimination applicable against the States. These three cases (and the 1963 Gideon case) set the table for Miranda.

Although the beneficiaries of all these cases were often blacks being railroaded (whether guilty or not), the full development of the law led to these benefits being applied to everyone. And, as with Miranda, there was fairly exuberant opposition all the way.

In the hundreds of cases that had come up on appeal since that triumvirate of cases in 1964, the court singled out four such cases, one of which was the title case, Miranda v. Arizona two years later. Chief Justice Warren, the former governor of California, wrote the opinion of the court from which four of the nine judges abstained. But, although Justice Warren mentioned that Miranda was “a seriously disturbed individual with pronounced sexual fantasies,” we have to go to Justice Harlan’s dissent to even find out what Miranda was supposed to have done and how the police handled him:

“On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time, Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had "an emotional illness" of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was "alert and oriented as to time, place, and person," intelligent within normal limits, competent to stand trial, and sane within the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a.m. Though at first denying his guilt, within a short time, Miranda gave a detailed oral confession, and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less, without any force, threats or promises, and -- I will assume this, though the record is uncertain . . . without any effective warnings at all."

There was no doubt where Warren stood from the opening words of his opinion:

“The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.”

Warren seemed to finally confirm Justice Jackson’s fears over twenty years earlier by holding that all interrogations done in secret were at least inherently suspicious, picking up where Justice Black left off:

“Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented . . . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”

Reading from a police interrogation manual, Warren made much of the psychological tricks the police used to trick or coerce prisoners. He admitted that the confessions obtained this way might not “traditionally” be found to be coercive. No beatings, no threats.

Although relying on the Escobedo case extensively, Warren rested Miranda on the fifth amendment right not to incriminate oneself rather than the sixth amendment right to counsel that the court had used two years earlier. It no was no longer required that the suspect had asked for a lawyer and was rejected to throw out the confession – the police now had to tell him he had the right to one, among other rights which Warren summarized for us as follows:

“[W]e hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

Justice Warren knew that at least the most persuasive argument against this bold new rule was that it was more in society’s interest to allow the secret interrogations than to prevent them. To this he made two counter-arguments; first, that the power of the government had to take a back seat to the constitution, here the fifth amendment; and secondly, he quoted another legendary Justice, Louis Brandeis, who once observed in a fourth amendment case, Olmstead v. U.S., in 1928:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fail to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

Four of the other judges were not pleased. Justice Thomas Clark dissented, writing that he believed the court had overstated the coercive aspects of actual police practices (there was nothing in the record from even one actual interrogation; just a manual of which the record was silent whether even one police department followed), that this new rule “may well kill the patient” (interrogations) and that the due process rule that there could not be compulsory or involuntary confessions was the better of the two.

Justice John Harlan was less gentle. He wrote:

“The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward “voluntariness” in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.”

He complained that Warren's authority relied not on fifth amendment “self-incrimination” cases, which the court had held was being violated, but on sixth amendment “right to counsel” cases, which he believed had nothing to do with interrogations. The rule against self-incrimination, he claimed, did not mean that "no" pressure could be brought upon a suspect, no matter how gently done.

Justice Byron “Whizzer” White also wrote a dissent, complaining essentially that the court had created a new rule out of thin air; that is, there was no precedent for it. He didn’t seem to mind that a rule which held that a defendant must be told that he may remain silent, but pointed out the absurdity that an accused might blurt out a confession before he was read his rights and interrogated, which even Warren admitted was allowable, but that a suspect who was told he had a right to remain silent (but not the other rights) couldn’t even be asked “Do you have anything to say” or “Did you kill your wife?” Is that really compulsion?

Whether or not you agree with the rationale, 5 judges outweigh 4 and Miranda became the rule. The conservative branch of the Supreme Court has managed to limit the application of the rule in some cases, but, in 2000, a judge as conservative as William Rehnquist wrote the opinion in Dickerson v. U.S., that Miranda was a constitutional rule and as precedent, could not be overturned even by the act of congress that sought to modify it. I recall being surprised nine years ago to read some of Rehnquist’s basis for his opinion, as they seemed very un-Rehnquistlike, he being well known to have a preference for arguments favoring the prosecution and disfavoring civil rights:

“. . . Miranda has become embedded in routine police practice to the point where the warnings have become a part of our national culture. [W]e have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, [but] we do not believe that this has happened to the Miranda decision.”

Justice Scalia and Thomas, even to the right of Rehnquist, argued that what the court’s decision “will stand for, whether the Justices can bring themselves to say it or not, is the power of the Supreme Court to write a prophylactic, extraconstitutional Constitution, binding on Congress and the States.”

Scalia, of course, raised a whole other issue, which I will deftly avoid here, but it is central to the question at least as old as Plato - whether the people shall rule themselves (i.e., democratically), or, will elite unelected leaders make our decisions for us (Plato liked the second choice). I freely admit I love some judge made rules and laws that I actually believe to be unconstitutional, and Miranda is among them. I was influenced long ago by a case I had where a young man was accused by an ex-girlfriend’s family of swerving his car towards him. The police picked him up and while he was sitting in the back seat of their car, they asked him if he was trying to kill them or just trying to scare them? He later told me he thought he had to pick one and, naturally, chose scare them. I hardly believed that every client I had was innocent, but I was fairly sure he was (and, indeed, his case ended up being voluntary dismissal by the prosecution). However, as much as I acknowledge my fondness for some of these policies, I also recognize that it is a dangerous precedent, as Scalia always points out. The next time we might not like these judge made rules. But, actually, that ship has long sailed, as judicial policy making takes place all the time from judges on the right and the left.

Thus, it appears that Miranda is here to stay, and, it hasn’t seemed to stop the governments from obtaining their usual high conviction rate. However, those are for cases actually brought. How many guilty murderers, rapists, arsonists, etc., would have confessed if they didn’t think to ask for a lawyer or to remain silent in a Mirandaless world? How many other victims would have been saved their own horrors or death, if those criminals were in jail? A few years ago a friend of mine was burglarized at the cost of between $20-30,000. A young woman caught on tape hocking her jewels turned her accomplice, who lived next door to my friend. The police said that they asked her if she was involved and she denied doing it, although it seemed pretty obvious she did. But, it was also clear that the police could not truly interrogate her as they might have had there been a different result in Miranda. Is that just or fair? On the other hand, you might take some solace in learning that Miranda himself was retried without the confession and convicted anyway.

And now, finally, I come to the issue I started with, now that you can see how constitutionally weak Miranda is (whether you like the policy or not), the slim thread by which it gained a majority, and the reasonable arguments on the other side. If it’s true that soldiers or combatants on the battlefield are being Mirandized, where are we going with this? Does the administration mean to suggest that those fighting against us in a war have the same constitutional rights as American citizens arrested in America do? Or that they are worried that the courts will rule they have them and they want to be prepared? It’s hard to understand why else this would they would make this our policy.

It lends itself to the arguments of the right that the left in general and Obama in particular do not understand our enemies, foreign policy or war. It is reminiscent of a policy from the Clinton error which rendered our intelligence services far weaker than before, when agents were no longer allowed to consort (and thereby gain intelligence from) some disreputable characters. It more than allows those who have not been Mirandized to claim that since they weren’t, their confessions are now out the window. Indeed, how can the administration credibly say that they all didn’t need to be read their rights? And, if that’s so, what about search and seizure without a warrant, right to jury trials, etc. This is not a slippery slope argument. It’s a simple legal argument that the most ignorant third year law student could make.

All countries recognize that there is a huge difference between criminal law and the law of war. While it might even be manageable (although wrongheaded) to Mirandize an occasional captive, imagine a war with prisoners in number like in World War II or even the Iraq War. Should Saddam Hussein been told he could remain silent, that he could have a lawyer present, etc.? Will all of these indigent fighters be entitled to lawyers at American cost too? Moreover, the “fog of war” will certainly spread a thick curtain over these warnings and there may often be no may to prove that the warning was given. The soldier who gave the warning might be dead or unable to appear in court when a hearing occurs. How many of these Miranda hearings are we prepared to do? Thousands? In a big war, millions? Won’t each prisoner care to test it?

For my part, I hope this all turns out to be a right wing nightmare (or rumor) and not true at all.

Political update for June, 2009

Ahhh, Spring!

It was 93 degrees in Buchanan, Va., where I live, on Tuesday and heading towards that today. Too hot for me. But, it is a pleasant change from the almost two months of rain and icky weather we’ve had for most of Spring here and up the East Coast. I have already had my usual Spring fights with people. They go like this – they say, Spring is the best season and the weather is wonderful. I say, no, it’s going to rain a lot and be cold; we will have a handful of wonderful Spring days and then it is going to roar into Summer weather ahead of schedule. It happens in the Northeast every year.

Yes, there are few days like beautiful Spring days, unless they are the best Autumn days (my favorite season), but, this is my personal Groundhog’s Day scenario. Every year everyone but me seems to forget what last Spring was like and I have the same conversations over every year, as if the last one never happened, when my nemeses insist that this Spring is unusual. I have only my daughter as a witness, who has heard it enough from me to remember we go through this every year, which is more support than Bill Murray got in the movie. This year I have been arguing with one friend, who insisted that Spring was wonderful every year and I was imagining the bad weather (glass half full). So, routinely, I get to send her “Ahhh, Spring” letters as it pours on us from above or we have to put our furnaces on because it is so damn cold in mid-May. Never mind Spring, there’s nothing like a good “I tried to tell you.” I counted four really beautiful Spring days thus far (that is, neither cold, rainy or too hot). And, yet, I will get to argue with her and others again next year.

Sully for president

I seem to have gone off the track in another argument I’ve been having, insisting that Chesley Sullenberger’s feat of landing the plane safely in the Hudson River wasn’t all that amazing. Not that I thought he didn’t do a good job – I was more impressed that no one standing on the wing in the freezing weather and water, fell in and took his word for it that he was just doing what he was paid to do. I don’t think I’ve spoken about it in this blog, but I’ve been saying it since it happened. After hearing from a bunch of pilots and pretty much everyone else in the world that I’m out of my mind, I’ll fold on it. Mea culpa. He did a great job and deserves all the praise he gets. I suppose that my being cynical about our media heroes, who often aren’t all that heroic, has its limits, and once in a while I get it wrong. That being said, I wouldn’t compare it to the guy who jumped on the subway tracks a couple of years ago and covered the epileptic while the train passed over, but it was a feat of which he can be proud. Besides, Sully seems to be a nice guy (at least, we think – there’s that damn cynicism again).

The Economy - getting better - nahhh!

Very little seems to be happening on the economic front these days. The state of the automakers and the banks, the unemployment, the GDP, GNP and what have you, all confirms for me my belief that all the messing around Bush’s team and Obama’s team have done to “rescue” the economy has all been for naught, and actually hurt. Every once in a while some powerful administration figure says that that there is light at the end of the tunnel, but the news always seems bad to me. I know not from whence they get the idea that things will turn around next year.

I never rule out the possibility of a recovery. The economy is not entirely beholden to politics and presidential tinkering and might just rebound. But, in the long run (whatever that means – the next ten years maybe, but even as early as this year) I expect another collapse due to the unprecedented spending from Washington. At some point, taxes must sky rocket. If the president had his way, that wouldn’t be until after the 2012 election, but it seems like they will have to do something way before then, and maybe very soon. If you just don’t get it yet and think that spending trillions of dollars is a good idea even with very little of it meant to spark business growth, consider that Obama now has stated (despite campaign promises – there’s a shock, eh?) to tax health care benefits. The effect this will have on the middle and lower class will be devastating. It will not have a big effect on the wealthy but will also be a blow to business, which will be faced with greater demand for some form of recompensation from its employees, some of whom will know longer be able to pay for their share of the premiums (but see last week's post on my brilliant solution to the health care crisis). Be sure, the government considers themselves and their spending more important than you paying your bills. What have they ever done since you’ve been alive to make you think otherwise? Doesn’t matter which side’s in office – they want your money.

If I haven’t made it clear umpteen times before, the New Deal did not seem to work very well during the thirties (you could ask then secretary of the treasury, Morgenthau, were he alive) and now, when we already have the huge expenses of so many entitlements already in place, and FDIC and social security and Medicaid, Medicare, Welfare, etc., it makes no sense at all to spend, spend, spend like madmen. Not only aren’t we on a gold standard any more, but it seems like all monetary theory has gone out the window. I am constantly struck that government pretends it has its own money to spend. They are either going to print money up like they are running out of paper, tax us to death, or default on their obligations (the last thing they want to do). One thing we can all agree on – the two parties and their corresponding ideological adventurers will blame each other if we fail and take credit for any success.

Please all laugh with me whenever anyone tells you that one of these "brilliant" money men like Geithner or Summers thinks he or she can tame the economy.

Sotomayor and the Senate

Justice Sotomayor’s Senate hearing, so far unscheduled, will be worthwhile viewing. And I am smiling, dear readers, at the thought that C-Span, the greatest boon to television ever – the poor man’s doctoral program – will again replay all of the past televised Senate hearings for Supreme Court Justices from Rehnquist (I believe the first televised) on down. You are not going to watch them, are you? Okay, if you are only going to watch a little (not going to, are you?), watch both of Rehnquist’s hearings (the second one, when he was appointed chief justice, is the more fun of the two), Bork’s, if they show it, Thomas’s (with Borks, definitely the most entertaining) and Scalia’s. That’s not a conservative political statement – they are clearly all right wingers, but, for whatever reason the political dynamic at the time made those by far the most interesting and provocative of the group. Watch also John Robert’s hearing if you can, where he put on a sterling performance, getting praise from even the Senator’s opposed to him for his brilliance.

I am shocked, shocked I tell you that Senators from both sides are already heating up the hypocrisy – the right wanting to slow things down, when they wanted to push through Roberts and Alito’s nominations, and the left wanting to push through Sotomayor while they claimed they didn’t get enough time on Bush’s appointments. We will unfortunately get cheated out of one big hypocritical moment. During the Bush days, when the right was in charge but the left had enough senators to filibuster, we reached the “nuclear” crisis. The right claimed that constitutionally, there was no right to filibuster a presidential appointment as a matter of constitutional interpretation and they were winding up to have Dick Cheney so rule from the floor as the president of the senate, and let the left deal with that however they could. The left, of course, was equally apoplectic, and insisted that since the senate could make its own rules, and there was no exception in the filibuster rule for appointments, then they could do what they pleased, also according to the constitution. A compromise was finally had, led by John McCain, where a few right wing Senators promised not to support such a ruling and the left promised to be sparing in its use of the filibuster for them.

We won’t get to see both parties reverse their stands, now that it is a Democratic appointment, for one reason only – the right almost certainly doesn’t have enough votes to maintain a filibuster.

Here’s what really bothers me about it. The reason the filibuster issue was a problem at all concerning judicial appointments was because it was a controversy that arose during important nominations. If the Senators really wanted to fix it, they would have waited until there was a lull, and then re-written the rule to take effect only after the election of the next president (which turned out to be Obama) – that way, no one would know which side would benefit from the rule change. But, you will probably never see it happen because the truth is, both sides love the filibuster rule when it suits them and don’t want to give it up, however much they complain when they are in the majority.

I have particularly grieved by the Senate process. The grilling hearings are a relatively recent phenomena, and nowadays, they seem to be done more so that the Senators can get a little press time than anything else. Do you think these Senators are actually going to read Sotomayor’s opinions? Even the most controversial ones? Don’t count on it. They will get briefings they will read from for a handful of cases they want to attack or praise. Remember, they are very busy fundraising and we have to be reasonable.

Of course, we all know what it really comes down to. All the posing, all the nonsense, all the hypocrisy these days comes down to whether many of the Senators think the candidate will be a vote for or against abortion rights. That’s a shame, especially because it can't be honestly done. I don’t see why asking a potential appointee whether they have a personal opinion about abortion and what it is. They will have death penalty cases, but you could ask them how they felt about murder. That is hardly the same as asking them how they would vote on a particular case. Still, it is accepted these days that no one will answer that question and I’m sure they hope they have never made any public statements on it before either.

What of the bias issue? Without quoting precisely, Sotomayor gave a speech where she said a Latina would have more experiences that would enable her to be a good judge than a white man. I have no doubt that Obama and many on his side think so too. His comments concerning who he would pick seemed to indicate it at least. I know many on the left who still feel that minorities should be given advantages that white (particularly males) don’t have – some say so openly, others just seem to also be on their side. Of course, I also know a fair amount of conservatives who almost always seem to come down on the white male side. At least we have a balance of injustice. As always, the miracle to me is that neither side can see themselves, but only the flaws in the other side. I wonder if any on the left will tell her they are troubled by her statement and vote against her. You have to doubt it, but it could happen (and we will see what Specter does).

I am hardly troubled by Sotomayor’s statement that they make policy on the court of appeals. She said in the same talk that they shouldn’t, but that it was a reality. Any attempt to utilize that against her is just so much political nitpicking and you should give it as much consideration as you would a hen’s opinion as to how many eggs you should eat (stretching for some type of profound simile there aaaaaand . . . missing badly).

The Middle East

I was deeply troubled earlier this year when America pledged 900 billion to help the Palestinians in Gaza after Israel crushed them when fired upon by rockets. It seemed an indication that he was going to make the mistake of trying to buy off people who hate us. That doesn’t work. Even statistics from the U.N. of how countries we give aid to vote shows us that they are happy to take our money but not our side. If it's appeasement they are after, Munich didn’t work out for Chamberlain either (and, yes, Chris Matthews, I know what happened at Munich). I for one don’t have faith that the money will not end up buying more rockets for Hamas or that they will get the credit for rebuilding Gaza. What this did is make it less likely that the Gazans or Hamas will think twice before attacking Israel again.

However, after I wrote feverishly on this topic a few months ago (1/24/09) in support of Israel as being more right than wrong in the struggle, identifying them as our ally, and encouraging them in the active right of self defense, I also mentioned that in a few years technology will allow their enemies to destroy them easily and remotely with so many missiles, that they had better find a solution fast. Also, I indicated that if Israel wants to keep the settlements in the West Bank, that I might very well turn around and support the Palestinians against that. It would be a violation of the U.N. charter. It would result in Israel giving up all moral authority. And, it would just make me think of them as thieves of the worst sort. Yet, we know from surveys that there are many Israelis who feel that they should keep the settlements and even expand (which they are still doing).

A one state solution is certainly not possible if Israel wants to keep its Jewish character. The two state solution is the only reasonable solution if they wish to survive. And that should mean that Palestinian land is Palestinian land (67 borders). To my surprise, when I discuss this issue with American Jews, they seem by a healthy amount to support Israel’s keeping the territory and they and Netanyahu are slowly going to pull me away from supporting them. It also makes me think two things might happen. One, there will be no solution and that is possibly what many Israelis (at least the government and perhaps a majority of the people) intend. Two, Israel will be destroyed some day and might deserve it by just trying reaching into the jar and not being able to take it without without opening their fist and dropping the cookie. I think they will find that once Hizbollah or Hamas or Iran is on top of them, they will not unilaterally stop or allow humanitarian aid in for Israel. But, Israel will have dealt the play, to quote one of my favorite fiction authors.

Nuclear proliferation

Is it me, or can you also not understand why any country with the ability to create nuclear weapons would be a signatory to the non-proliferation treaty? If I was Iran, I would certainly want the bomb, particularly with its neighbor Pakistan, a Sunni country, packing, not to mention India. If I was Japan, I would certainly want the bomb. Who cares if North Korea has a guidance system for a missile. They can motor and row it over to Japan on any calm night. One population center gone and it is the end for a country like Japan, which reproduces its citizens at a very low rate. It is one thing for us to say, we don’t want countries we don’t like to have the bomb. It is another thing to prevent it. Let’s face it. Bush did nothing about North Korea. Obama’s done nothing about North Korea. Bush did nothing successful about Iran. Same for Obama.

Really, what can they do? Sure you could attack Iran, but its one of the biggest countries in the world and it would take tremendous resources to accomplish anything while clearly destabilizing the Middle East. It’s nuclear program is spread out and hidden among many secret installations. An attack would almost certainly bring reprisals and our country has little stomach for that. Iran is not Libya and isn't going to panic at a rattling sabre. No American leader has the gall to do that anyway these days, nor any other country other than Israel, and they do not have the power to do it. Those days, at least for now, are over.

I might sound like one of those crazy conspiracy theorists to you. So, let me quote President Obama during a presidential debate:

“We cannot allow Iran to get a nuclear weapon. It would be a game-changer in the region. Not only would it threaten Israel, our strongest ally in the region and one of our strongest allies in the world, but it would also create a possibility of nuclear weapons falling into the hands of terrorists. And so it’s unacceptable. And I will do everything that’s required to prevent it. And we will never take military options off the table.”

Like most presidential candidates with a chance, Obama said what he needed to satisfy the public he would defend us. But, what exactly would he do to avoid the bomb. He needn’t worry much. National Intelligence Estimates put the timetable for an Iranian bomb even beyond an Obama second term. Whether that’s accurate or not, he has cover to sit on his hands as long as he wants as long to and there isn’t a smoking gun. Even then, do you see him sending in Special Forces?

Besides, what country can answer this following question without at least knowing that their answer will be chauvinistic and unsatisfying, even if they have a good reason – “Why can you have the bomb and we can’t?” Once Iran builds one – like India and Pakistan did, there is nothing left to do about it. Economic sanctions haven't worked on Cuba in almost 50 years and won't work on Iran anymore than they have already.

I don’t know if Iran is building a bomb. I know we can’t trust intelligence or international inspectors to give us correct answers about it. So many of them were wrong about Iraq and to my mind, Colin Powell’s performance before the U.N. was one of the most craven political acts I’ve ever seen. It’s not that I don’t like Colin Powell. I actually do, although I don’t agree with some of his ideas on war (particularly the - you break it, you own it idea). Of course, the willingness to suspend disbelief by the American people after that speech was more astonishing. I'm sure there are people who didn't believe it, but I can't think of any (although like you had trouble finding Nazi's after WWII, you can probably find a lot of disbelievers of the the Weapons of Mass Destruction after Iraq went South). Sometimes my cynicism does lead to the right answer. No WMD's would be found. I thought getting rid of Saddam was a good idea anyway, for other reasons, but the way we have stayed was foolish and very destructive to our economy and the country's morale.

I do think Iran is trying to obtain nuclear weaponry, but my reasons are not based on inside information but on their prior behavior. Iran has already given us the reason that they will lie to us. When they were discovered to have been hiding a long entrenched program one of their leaders explained that they had no choice. Embargos by the U.S. had hurt their economy so much in order to prevent them from obtaining equipment they could use to make atomic power, that the country suffered from the lack of what it called dual purpose materials. They hadn’t wanted it to get worse, but wanted nuclear power, so they lied. The same theory applies to the bomb. They would find their power enhanced by obtaining the bomb as has every other country that obtained it. We now welcome India, for example, into the club, because it is better to have them on our side.

No doubt that U.S. involvement in Iraq and Afghanistan, not to mention the economic concerns now upon us has given Iran a much freer hand. This was one of the gifts of the Bush years to our enemies – perhaps the biggest gift.

Unlike many who are usually more on the hawkish side, at least in terms of preparation, I am not one who is concerned with dialogue between our president and other leaders. History shows us that it in itself is not a problem. Examples with Russia and China are to obvious to spend time on here, but I cannot see how engaging with much lesser powers like North Korea, Cuba, Iran, etc., can hurt either. Are we that dumb that we will be fooled that easily. Will the world really give Castro more credibility because he had lunch with Obama or shook his hand? Of course, one needs greater experience than President Bush to do so and not look in their eyes to see their soul.

Here are my solutions to all of the above problems. National recognition that Spring is not the best, but the worst season; a likeness of Sully in the Smithsonian (which he would find funny); growing recognition of the hypnotized American populace that spending money you don’t have and can never pay back (when is this ever good) will lead to higher taxes, inflation, severe depression or all three; Republican recognition that Sotomayor is not the anti-christ and they have no chance to block her nomination absent some bombshell like she keeps anglo-male slaves in a hacienda; increased pressure on Israel to unilaterally abandon the settlements and regain completely the moral authority they had in the past and last, increased diplomatic, covert and economic pressure on Iran, but learn how to live with their having the bomb if they are building one, because China and Russia are not going to help us apply the pressure we need to really accomplish anything.

That was so easy. Why don’t I just run for president? I seem to have all the answers. Perhaps I can get Sully to run for VP