SCOTUS and the Designated Strip Seach Observers

I spent most of yesterday digging through the PREAL document Jason Leopold and Jeff Kaye liberated the other day (more on that later). Like Harper’s Scott Horton, reading it closely just after SCOTUS made it legal to strip search people arrested of offenses as minor as leash law violations made me see the Court’s decision not as a legitimate means to keep jails safe, but as a way to make it easier to cow select classes of our population. Horton writes,

Just as the Florence decision was being prepared, the Department of Defense released a previously classified training manual used to prepare American pilots for resistance to foreign governments that might use illegal and immoral techniques to render them cooperative. Key in this manual are the precise practices highlighted in Florence. Body-cavity searches are performed, it explains, to make the prisoner “feel uncomfortable and degraded.” Forced nudity and invasion of the body make the prisoner feel helpless, by removing all items that provide the prisoner with psychological support. In other words, the strip search is an essential step in efforts to destroy an individual’s sense of self-confidence, well-being, and even his or her identity.

For me, it wasn’t so much PREAL’s description of strip searches themselves in the context of SERE training, with the manual’s explicit statement that searches serve to humiliate, degrade, and erode identity. Rather, it was the job description for one designated role at the SERE fake jail, that of the “body cavity check (BCC) observer.” The BCC observer’s sole role in the SERE training is to stare at prisoners during their intake strip search.

The role of this observer is to view the students while the BCC is being conducted. You do not conduct the actual BCC; the searchers will do this. You are there to observe and make the student feel uncomfortable and degraded. The observer will not have any verbal interaction with the student. Just act solemn and unimpressed.

Government psychologists have devised not just the strip searches themselves to degrade SERE trainees, they’ve ensured there will always be someone staring during the process (and while the PREAL contradicts itself on this and many topics, it calls for opposite sex observers).

Just act solemn and unimpressed and our cultural hangups about nudity will do the rest.

Remember, SERE is supposed to be a good thing. It trains our warriors to withstand the procedures our enemies use to break down their humanity if they’re captured. Except that we’ve rolled out the procedures not just for use against our own war captives, but for use in county jails across the country. SCOTUS just sanctioned the use of these intentionally dehumanizing procedures for the most minor violations of societal rules. (And don’t forget that–as Glenn Greenwald pointed out–the Obama Administration argued for strip searches as well.)

Now, all a local cop has to do to make a selected person feel the dependency wrought by humiliation is trump up some minor charge and whisk the (usually) young black male to the jail for a strip search. It won’t stop there, either. To justify this procedure, Kennedy points to three dangerous traffic stops, implicitly inviting invasive searches there, too.

We’ve long known these procedures of control are about imposing dependency (the word PREAL uses). But if there were any doubt, read how the military creates a fictional space designed to strip people of their humanity–compare it with the world around us.

59 replies
  1. Jeff Kaye says:

    Hey, Marcy. I’m so glad to see Scott Horton and yourself, two highly competent and talented observers, go to work on the PREAL document. I look forward to your more detailed examination.

    I think you have found the presence of the opposite sex observer to be contradicted at other parts of the manual, but if you get into the particular mind-set of the faux-torturers, then there’s really no contradiction (at least on this point) at all. I imagine you’re referring, to begin with, to the section (5.7.2) that says, “No member of the opposite sex will be present/witness this phase of training unless performing an assigned duty, necessary to accomplish the body cavity check.”

    And then, the very next paragaraph notes, “… female body cavity checks are conducted in a manner, and location, that will prevent any accidental exposure to members of the opposite sex.” (Emphases are added here)

    Later, as the BCC details are described more specifically, it appears that in order “to avoid impropriety or the perception of impropriety,” the procedures for men and women will differ. Indeed, the manual specifically states either sex may search and disrobe the male prisoner (and that certainly brings up its own level of sexual humiliation for some if not many men), while only females will search and disrobe females, all the while “searched separately from male students and instructors.”

    Finally, the monitoring of the entire procedure is different for males and females. Men will have “a PRA approved female observer… conduct the BCC.” Women have “PRA Medical Staff or PRA Exercise Controller… monitor search and BCC.” (PRA is the acronym for Personnel Recovery Academy, the teaching arm of JPRA, SERE’s parent agency. Note that each of the different branches of the military, and JSOC, also conduct their own SERE schools. JPRA used to be under Joint Forces Command, but now that JFCOM has been disbanded, they have moved directly under command of the Joint Chiefs.)

    While I believe I can check on this (and will), I believe the author or authors of the manual may have blanched at being so specific in the procedures, but they could not hide that there is a separate role player, as you point out, the BCC Observer. This person is necessary for the procedure precisely because it is calculated to humiliate and dehumanize. But this being a training, and JPRA interested in keeping the procedures within bounds and not spilling over into “behavioral drift” and unbridled barbarity, limits are set. Hence, the opposite sex is kept well away from women, except, as I argue below, in the one instance they already described in Section 5.

    You can bet that either one of the medical staff (not an instructor or student), or the PRA Exercise Controller (again, not an instructor or student, but an administrator) is the opposite sex BCC Observer in such instances. You’ll notice no total ban of any males present, only male students and instructors. This is both to keep embarrassment to the minimum PRA/JPRA felt necessary to expose women students to the helplessness engendered in such a situation, which in the real world they felt was something that could happen to a woman prisoner. But it also exposes the inherent sexism in that it assumes men could take it more.

    As far as the SCOTUS decision goes, it is difficult to believe that supposedly august body could sink much lower. This decision was another brick placed upon the edifice of the growing police state.

  2. bmaz says:

    Yes, I think you and Horton are picking up on the real significance of the Florence decision. Contrary to the popular meme, this all is not exactly new in jails, and arguably has some rational basis for more serious felons being admitted to gen populations. But that, of course, was not the issue in Florence – and was not particularly contested. No, this is about demonstrating power and diminishing will upon anybody that even casually floats through the system, no matter how innocuous. To the extent the Court felt it needed to go down this road, there could have been all manners of time, place and situational limiting factors imposed. That there were not more of that, and less of Kennedy’s rambling mush, is telling.

    As I told BSL the other day though, it is also instructive that the Court’s ruling is about precisely what those great protectors of civil rights, the Obama Administration, demanded in their amicus brief.

  3. emptywheel says:

    @Jeff Kaye: I suspect one source of the contradiction is thta this document is actually a kluged together document from at least 3 different source documents. So the rules changed from group to group and year to year, but whoever compiled this particular version didn’t take the time to go clean it up, at least not before sending it to John Yoo.

  4. emptywheel says:

    @bmaz: One of the nicest bits is actually Kennedy during the oral arguments.

    JUSTICE KENNEDY: But I take it — I take it what we’re trying to do is to protect the individual dignity of the detainee. But it seems to me that you risk compromising that individual dignity if you say we have reasonable suspicion as to you, but not as to you. You’re just setting us up, and you’re setting the detainee up for a classification that may be questioned at the time and will be seen as an affront based on the person’s race, based on what he said or she said to the officers coming in.
    MR. GOLDSTEIN: Right.
    JUSTICE KENNEDY: And so, it seems to me that your rule imperils individual dignity in a way that the blanket rule does not.

    That is, to avoid any harm to the dignity of those who clearly do present threats (those accused of committing violent crimes, etc) Kennedy says everyone must be strip searched.

    But of course, Kennedy achieves precisely what he was trying to avoid (purportedly). He thinks everyone should be strip searched to avoid any selective indignities, but to achieve that, he just gave full discretion to strip search (or not) anyone with no reasonable suspicion to the same jailers who strip searched a black man even after finding they had no reasonable suspicion he’d have anything. Every jailer gets to be an arbiter of indignities with full impunity now, no matter his or her personal biases.

  5. bmaz says:

    @emptywheel: Exactly. But the aversion to “classification” is simply asinine. The subjects at issue, from the least innocuous to the most menacing and serious, are ALL, by the point this decision is germane, under arrest and within the purview of the pre-trial criminal justice system. That changes ones status and position inherently – right or wrong – from the average citizen on the street.

    From the second arrest is effected, there are a series of exactly the classifications Kennedy seems to struggle so mightily with. Classification decisions by the arresting officer, depending on the crime, the arrestee’s look and demeanor and a host of other subjectively determined factors determine whether the arrestee is handcuffed, whether he is handcuffed in the front or back, whether leg shackles and/or other restrain is applied, whether he is transported in a police cruiser or a paddy wagon is called, whether he is taken to the nearest city police station/sheriff’s substation or to the main county felony lockup. It determines whether a subject is cited and released or booked. If it is booking, then a whole new and distinct set of classification protocols begin to calculate a release condition bail matrix to be provided to the IA magistrate (or determine if it is a no bond situation). It may be a leash law arrest, but if the subject has priors or outstanding warrants, things go differently. Whether you actually see the IA magistrate or are processed via a secure video feed often depends on all this. As does whether, while being processed, you are with other harmless people, or in special risk secure holding cells.

    It is ALL one giant freaking classification. Coming up with some limiting protocols would be far from novel or impossible. Sure some people will feel wrongly classified; get in line, that is the nature of the gig. But to just leave it open and wholly within the discretion of whatever detention nazi guards you encounter – that is where Kennedy just lost me and looked addled.

  6. Jingly keys says:

    Let’s let the Committee Against Torture say it,

    “The State party should rescind any interrogation technique, including methods involving sexual humiliation, “water boarding”, “short shackling” and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to
    comply with its obligations under the Convention.”

    Scalito and the other seven swine see their job as shielding the state from human rights and jus cogens, the minimal standards of the civilized world. Problem is, attorneys, who follow this most closely, are indoctrinated to impute legitimacy to a body that has long since pissed it all away with its contempt for universal norms. The Supreme Court is infected with the same terminal rot as the Justice Department. They might as well be interpreting Juche for Dear Leader.

    It’s just as well the constitution’s been set aside, because it gives humans no protection and serves only to perpetuate rotten institutions. This country needs a Human Rights body consonant with the Paris Principles to make this judicial pigsty earn its authority. Or just tear the court up by the roots. The Supreme Court, like the rest of this police state, has no reason to exist.

  7. orionATL says:

    my god! this is truly insane.

    and wouldn’t you know, yet another harvard law school graduate from a highly privileged background is involved.

    this decision authorizes an extraordinary invasion of government into the “rights and privileges of free men” – the precise opposite of the intent of the bill of rights.

    the supreme court’s law-makers and law-validators have got things turned upside down.

    police, jailers, sheriffs are supposed to expect risk and supposed to accept risk – that’s part of their job; their trained for that; it’s part of what they are paid for – making the world safe for our police is inherently anti-individual and authoritarian.

  8. jingly keys says:

    I’m not surprised that you would think so, meticulously indoctrinated as you are to the provincial blinkers of domestic legal reasoning. You also jumped to dismiss the CCPR, as I recall, binding though it is. But sad to say, the judicial system you live for does not measure up to world standards. At this point it exists solely to fend off the norms of the civilized world with circumscribed statist logic-chopping.

    As long as attorneys continue to take those benighted clowns seriously, repression and rights derogation will continue to get worse in your isolated third-world wasteland.

  9. bmaz says:

    @Bay State Librul: I do not think overall, in reality, Kennedy is at all. Not that I have seen on the whole. But this decision is mush. Even if you were going to get to substantially the same point, the way Kennedy did so here is, well, goofy. There is a Linda Greenhouse piece at NYT Opinionator about how she thinks there is a lot more behind the scenes that is behind the decision issued here in Florence. She may well be right. Still, it is weird. And I am not talking about just disagreeing with the result, but being baffled by how it got there. As I explained above, because it is a presumed probable cause detention situation (even if it turns out to be mistaken) the case does NOT relate necessarily to, as OrionATL discussed, the “rights and privileges of free men”. Still, even given the nuances involved, I am troubled by how Kennedy handled it.

  10. Bay State Librul says:


    Yes. It had to do with Justice “I don’t probe or ask any fucking questions” Thomas, and his failure to put in writing his thoughts?

  11. emptywheel says:

    @bmaz: Fascinating. Thanks for linking.

    What’s amazing is that the court misrepresented what I understood Goldstein to be arguing to make their case, AND claimed these are REALLY strip searches. WTF was that about?

    Add in Kennedy’s weird reliance on traffic stops, and it just seems really daft.

  12. Bay State Librul says:


    You have more faith in the system than I do.
    With their pronouncement that “Corporations are People”, I wanted to shove my head in the tailpipe…

  13. orionATL says:

    bmaz writes “…the case does NOT relate necessarily to, as OrionATL discussed, the “rights and privileges of free men”…

    yes it does.

    treating individuals in a way that afronts their sense of dignity, behaving disrespectfully, restricting or suppressing individual behavior is THE central behavior emerging with increasing rapidity in all layers of american government –

    individuals must submit to increasingly numerous and refined gov’t dictates rationalized in the form of some official’s safety or capacity to do his job (for the good of us all, don’cha see).

    being body searched in a jail, being forced to remove shoes in an airport, being detained on suspicion of x, being spied on for x reason, having your cell-phone or camera stolen by police, likewise your computer equipment stolen by police or fbi, being stopped for no good reason, being required to disclose information about your customers to the gov’t, being placed on a no-fly list, most centrally, being denied habeas corpus …

    i’d guess one could list several dozens of similar restrictions that denigrate individuals or circumscribe an individual’s behavior with respect to govt officials.

    free men and women need the capacity to tell the gov’t to fuck off, get off my back, go to hell, without ending up in jail for doing so.

  14. bmaz says:

    @emptywheel: It IS a bit daft. And, I am pretty sure Goldstein was a bit perplexed as well. And, yes, you have hit on the curious aspect of what really was sanctioned by the Florence decision. As I have said, publicly and privately, it is a pretty regrettable decision. But, it is not, even so, all that it has been portrayed as, as shitty as it actually is. As I said above, there is so much that was already allowed, and so much that is inherent in the arrest/detention/initial appearance process that really does take it out of the norm for a normal citizen on the street……Yet, Kennedy still confusingly and mushily went all kind of tangential. I am highly disturbed by the Florence decision, but maybe more so just for being dumbstruck as to what the fuck occurred to get there than I am the actual resulting opinion. Although I am not crazy about the resulting opinion either.

  15. thatvisionthing says:

    I’m guessing this is ballpark and it’s in the news now — would appreciate it being noticed here.

    Michael Moore’s front page is featuring stories about Tim DeChristopher getting sent off to isolation in prison. DeChristopher was moved to isolation at the behest of an unknown Congressperson. From one of the linked stories, at Peaceful Uprising:

    However, vital questions still remain: Why was Congress involved in moving Tim into isolated confinement? Who ordered the investigation? How is a Congressperson privy to a personal email that Tim sent to one of his friends? Martin Luther King said, “An injustice to one is an injustice to all”, and this abuse of power must be exposed in its entirety if we are to safeguard our own personal liberties.

  16. orionATL says:

    what is impressive to me at this small site is how little angry reaction to this scotus decision there has been.

    and how pointlessly knowledgeable is the small amount of discussion there has been.

    american citizens should be mad as hell about this absurd, and horribly demeaning, interpretation of law by a supreme court composed of highly privileged individuals who lack both constitutional good judgment and any risk to themselves or their family or friends from their decision.

  17. lefty665 says:


    “pointlessly knowledgeable” What a curious phrase.

    Wouldn’t want that knowledge stuff to get in the way of opinions. Nosiree Bob, made up my mind already. Remember the Teabagger’s sign a couple of years ago? “Keep your Gubmint hands off my Medicare”? That guy sure didn’t let any of that “pointlessly knowledgeable” stuff get between him and his rant that Gubmint was guarandamnteed to screw up his Medicare if it got its paws on it.

    What some of us (me anyway) like about this “small site” is that it’s got a bunch of witting folks hanging around it. That starts with thems what run it, and extends to most of those commenting. I am not a lawyer (no shit); so among many other things, I especially value the analysis and insight this “small site” brings to Federal law and legal process.

    Do I always agree with what is presented here? Nah. Does it usually make me think about the factual and practical basis of what I believe? You betchya. Do my passions and sleeping points vary sometimes? Sure. For me it doesn’t get any better than that. Break out the Old Milwaukee to chase the Scotch.

    I try to keep my trap shut unless I’ve got specific knowledge or experience, in addition to passion, that bears on a topic. Opinion of the value of the content I add varies, and that’s ok too. A vigorous discussion of an issue can bring clarity and focus that is greater than its parts. Ad hominem stuff not so much.

    Do strip searches for trivia suck? Yes, I sure agree with you on that. But, in terms of outrage, they are pretty far down from being targeted with a Hellfire without any judicial process at all.

    A parting thought. If you think it’s bad for us, consider the poor bastard who’s got to look at our sorry, misshapen, stinking asses 5 days a week. That’s do do process for ‘ya.

  18. Sleepless in NJ says:

    My fear is that this will have a chilling effect on the Occupy movement, given the propensity of police to make mass arrests and hold protestors for several days before the charges are dismissed. It’s bad enough that they’re pepper spraying and beating them with batons, and now SCOTUS has authorized strip searches at the discretion of the sadistic law enforcers who decided the right to freedom of speech and of assembly no longer applies.

  19. Bay State Librul says:


    I agree.
    Tom Ashbrook from NPR in Boston did a 60 minute show last Thursday.
    I couldn’t believe the judge’s insensitivity and lack of compassion
    I listened to the show while driving under the influence of the Five Judge’s malarkey.
    It was so riveting that I raced from my car to turn the radio
    on in my house, so I wouldn’t miss the discussion.

  20. JThomason says:

    So maybe the sado-masochistic impulses demonstrated at Abu Ghraib were not so much an aberration as a harbinger of an emergent cultural norm. Who knew it?

  21. phred says:

    @JThomason: We did. From the Military Commissions Act to the TSA to Strip Search USA, a lot of us around here understood what was unfolding all around us. The loss of the central tenets of the Constitution and the destruction of the relationship between the citizen and the state that vested the greatest power in the former and limited it in the latter. We have become a police state. We are no longer “the land of the free and the home of the brave”. It’s been a rapid slide down the slippery slope and from what I can tell, we’re still picking up speed.

    The 1970s seem so quaint now, with all of the tsk tsking we did about the police states in the Soviet Union and behind the Iron Curtain in eastern Europe. I guess we just didn’t know what we were missing. I remember one of the things I thought was odd back then was the way those countries made big displays of their military — goose stepping soldiers in Red Square, tanks rolling down the streets in parades. Now of course, I can’t even go to a baseball game without some obligatory salute to our military. Military jets fly by every big game.

    We have become what we once feared most.

  22. bmaz says:

    @Sleepless in NJ: Kind of a mischaracterization in many regards. The rule in American criminal law is that an arrestee can be held for up to 48 hrs, not including weekends, before being given an initial appearance and either formally charged or released. This has been the rule for decades, there is nothing new about its application to Occupy. Similarly, while it is pretty clear that police have been, in far too many of the locations, too brutal and in abuse of reasonable use of force guidelines, nobody has “decided the right to freedom of speech and of assembly no longer applies”. Reasonable time, place and manner restrictions have been an integral part of American free speech law for the better part of the last hundred years.

  23. pdaly says:

    @reject this: and @ bmaz “They can only be removed by impeachment, resignation or death.”

    It’s a good thing corporations are not named yet to the Supreme Court.

  24. pdaly says:


    The reasonable time, place and manner restrictions is the weapon that corporations use to their advantage against the Occupy Movement, because money which the corporations are using to buy access and influence politics has no such time, place or manner restrictions.

    The protestors in the Occupy Movement have little money. That is, among other reasons, why they are protesting.

    The corporations complain to authorities that protestors are occupying day and night the public-private parks.
    Meanwhile, corporate money is “speechifying” 24 hours a day without interference from club wielding and mace spraying police officers.

  25. pdaly says:

    And “corporations,” creatures of state law, used to have time restrictions placed on them (exist for only a limited amount of time and then must dissolve)–but they broke free.

  26. bmaz says:

    @pdaly: Well, except “corporations” do not use the law at all in this regard, elected government does. Now, granted, corporations seem to mostly own politicians, but that, too, is not novel. Further, the one beauty of a democracy is that if enough people want to, they can change this by supporting different politicians, with different views on these subjects.

    I share you views to a large extent, if not totally; at the same time, I sometimes wonder if we do not enjoy exactly what we earn as voters and as a nation.

  27. Gitcheegumee says:

    Isn’t it ultimately ironic that as government increasingly cloaks and shrouds itself ,citizens are systematically being stripped of theirs?

    (I have a visual in my mind of a totally nude Lady Justice ..holding some very heavily tipped scales of justice.)

  28. thatvisionthing says:

    @orionATL: Yes, I knew that, but I thought it was news that it was an anonymous Congressperson that put DeChristopher — was able to cause him to be put (what?!) — in isolation in prison. But actually, following the links backwards to the Rolling Stone article ( ), that was already known too.

    So what is news is that RT TV is trying to get the public to ask their representative in Congress if they are the one who did it. They’re specifically focusing on members of a house judiciary subcommittee:

    From the youtube at

    [2:57] ALYONA MINKOVSKI: And here’s the kicker. The Bureau of Prisons did this reportedly at the request of an anonymous Congressman. Now isolation is no joke. Human rights groups have said that the experience can be considered tantamount to torture. And here’s what a staff attorney for the Center for Constitutional Rights had to say about isolation:

    Courtesy: March 2010

    Alexis Agathocleous: People are being cut off physically from their families in ways that just serve no legitimate purpose whatsoever. This is deeply upsetting not only to our clients who are incarcerated but also deeply destructive to their children, to their spouses, to their loved ones.

    Screencap: To learn more about this case and its impact, visit

    Now in DeChristopher’s case, he was given little exercise, little fresh air, and minimal contact with the outside world, and his lawyer, Patrick Shea, said that his client’s mental state started to visibly worsen after just three weeks. Now thankfully for DeChristopher, the news sparked a public outcry. Officials integrated him back into the general prison population, and Patrick Shea told us Tim would still be in isolation but for a free press.

    Now prisoners in the federal system are thrown into isolation without due process all the time. This time what’s disturbing about it is that it happened to DeChristopher because of one angry congressman. Ideally we think that the public should know what congressperson was the brains behind this idea, so this is where you the viewers come into this story. Get in touch with your member of Congress’s staff and ask on the record whether or not they contacted the Bureau of Prisons about DeChristopher’s letter. If they did, ask if they implored the bureau to employ retaliatory measures such as isolation.

    Now we’re going to document the responses. We’re going to try to narrow this down for you. And of course, talking to all 435 members of Congress is a monumental task. So what would really be helpful is if voters with the representatives on the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, you guys would get involved. See that’s the congressional panel responsible for prison bureau oversight, so maybe after enough calls, the panel itself will start asking some questions. After all, being thrown into isolation at the whim of an elected official – that is not how our justice system is supposed to work. So, if you want to get involved, check out our Facebook page for tips on how to ask the right questions, who the members on the subcommittee are, and once you receive a response, send it to us, we’ll keep track of the answers and keep you posted. So check our Facebook page for additional details, get in touch and stay tuned.

  29. masaccio says:

    @Sleepless in NJ: This seems right to me. I assume that we will see plenty of strip searches in Tampa as protestors are sent off to jail.

    bmaz can argue all he wants to that the Supreme Court deserves respect, but the intellectual dishonesty of this crowd has stripped them of legitimacy. They are helping the legislature, and the administration run the country into the ground. The only people who will be left standing are the rich, the employers of the government.

    I’m thinking about France. I’m sure it’s just as bad from a governmental intrusion point of view, but the food and wine are better.

  30. masaccio says:

    @bmaz: Oh come on. No one thinks these rules are applied even-handedly. How many times did the police bust up tea party noise makers? But let a bunch of college kids plop themselves down on a campus protesting the activities of the school, and there are no reasonable limits.

  31. thatvisionthing says:


    So they’re targeting these guys (in parentheses = my search, could goof):

    The Subcommittee on Crime, Terrorism, and Homeland Security shall have jurisdiction over the following subject matters: Federal Criminal Code, drug enforcement, sentencing, parole and pardons, internal and homeland security, Federal Rules of Criminal Procedure, prisons, criminal law enforcement, and other appropriate matters as referred by the Chairman, and relevant oversight.

    112th Congress Subcommittee on Crime, Terrorism and Homeland Security

    B-370B R.H.O.B.
    Tel: 225-5727

    Mr. Sensenbrenner, Chairman (F. James Sensenbrenner, R-WI-5, 202-225-5101)
    Mr. Gohmert, Vice-Chairman (Louie Gohmert, R-TX-1, 202-225-3035)
    Mr. Goodlatte (Bob Goodlatte, R-VA-6, 202-225-5431)
    Mr. Scott (Robert C. Scott, D-VA-3, 202-225-8351)
    Mr. Lungren (Daniel E. Lungren, R-CA-3, 202-225-5716)
    Mr. Cohen (Steve Cohen, D-TN-9, 202-225-3265)
    Mr. Forbes (J. Randy Forbes, R-VA-4, 202-225-6365)
    Mr. Johnson (Henry C. “Hank” Johnson, D-GA-4, 202-225-1605)
    Mr. Poe (Ted Poe, R-TX-2, 202-225-6565)
    Mr. Pierluisi (Pedro Pierluisi, D-Puerto Rico at large, 202-225-2615)
    Mr. Chaffetz (Jason Chaffetz, R-UT-3, 202-225-7751)
    Ms. Chu (Judy Chu, D-CA-32, 202-225-5464)
    Mr. Griffin (Tim Griffin, R-AR-2, 202-225-2506)
    Mr. Deutch (Ted Deutch, D-FL-19, 202-225-3001)
    Mr. Marino (Tom Marino, R-PA-10, 202-225-3731)
    Ms. Jackson Lee (Sheila Jackson Lee D-TX-18, 202-225-3816)
    Mr. Gowdy (Trey Gowdy R-SC-4, 202-225-6030)
    Mr. Quigley (Mike Quigley D-IL-5, 202-225-4061)
    Ms. Adams (Sandy Adams, R-FL-24, 202-225-2706)
    Mr. Polis (Jared Polis, D-CO-2, 202-225-2161)
    Mr. Amodei (Mark Amodei, R-NV-2, 202-225-6155)

    Though my question is, can these subcommittee members out the anonymous Congressperson, who could be one of 435?

  32. bmaz says:

    @masaccio: Very few laws are “applied even-handedly” across the US. That does not make the law illegitimate or unconstitutional. And, while I understand the concern for the Occupy, I would imagine there is about zero chance that had anything to do with the Supreme Court’s decision in Florence. It is easy to shout illegitimacy and bark at the moon when there is no alternative on the offer. It may suck, but this is the constitutional system of governance we have until there is a better one available.

  33. Sleepless in NJ says:

    @bmaz: I never meant to imply that the Occupy movement had anything to do with the Court’s ruling. I’m just concerned about the impact it will have on the protestors, who are brave enough to continue to put themselves on the line to protest an unjust system. This ruling will give free rein to Bloomberg’s “own private army”, which has shown itself at times to be unnecessarily ferocious, to have one more way to brutalize the protestors.

  34. bmaz says:

    @Sleepless in NJ: No, you did not specifically, and I did not really mean to infer you did. Many I have seen have around the internets have, and I did not mean to use you as a cut out to address those. And, to be honest, the potential application of the new ruling in Florence to Occupy is far from unfounded; it likely will occur.

    I will be honest, I flinch a little at some of the alarmist rhetoric about the Occupy, and I am probably too sensitive in looking for it. So much of criminal law is nuance and degree. For instance, the initial appearance time frames I described above are true, and they have been around a loooong time. Are they always fair? No. But, and this is especially the case in big cities and/or where there are a LOT of arrestees to suddenly process, they are not unusual or outrageous in the least. I have to explain this to just about every client I have ever had that has gotten booked into a county lockup. Unfortunate as it may be, that is the way it is; and the people down there trying to process the lot actually usually are trying pretty hard to do their job. If there is a real issue, it often comes from cops not transporting and initiating into the I/A system in a timely manner.

    Point being, for the most part that I can discern, the Occupy have very little real beef with “the system” in relation to I/A and release processing. As stated above though, they DO have real beefs with treatment by cops and abuse of force prior to submission to court processes for I/A processing. To flip the proverbial token again, after a certain amount of time – and I think a month or two certainly is more than reasonable – I can fully understand a city, county or federal government saying that enough is enough with the constant usurpation of common public property in a hostile manner that prevents the greater citizenry from enjoying its use. The occupy IS an important movement and should have its voice.

    By the same token, governments work on democratic principles and it is beyond highly doubtful that a majority of people in any of the locations actively supported permanent possession of core city, county and federal land to the exclusion and expense of the general whole. At that point, time place and manner restrictions being applied was not particularly unreasonable – at least in my view. The Occupy is important – nee critical – but if it is to endure and have transcending effect, it must be far more than some anarchists in tents engaging in hostile adverse possession of public parks.

    In short, there is a LOT of degree and nuance that goes into considerations of these subjects. They are not all black and white. What each of us were saying is not necessarily in conflict with the other.

  35. pdaly says:

    @bmaz: @35

    Yes, I think of the elected government as cut outs for the corporations’ attacks on peaceful assembly.

    Specific case in point: Occupy Boston was living on Dewey Square Park–public land maintained by a private nonprofit Greenway Conservancy made up of mostly business interests. OccupyBoston obtained a temporary restraining order from eviction soon after learning of the NYC Police Department raid and eviction of Occupy Wall Street.

    But Occupy Boston was disbanded from Dewey Square soon after Occupy Boston lost its subsequent Motion for Preliminary Injunction.

    Judge Frances McIntyre of the Massachusetts Superior State Court wrote the following upon lifting her prior temporary restraining order protecting Occupy Boston from eviction:

    “Occupy Boston, Kristopher Martin, Sasha Sagan, Noah McKenna, and Jennie Seidewand, Plaintiffs,


    City of Boston, City of Boston Police Department, by and through Police Commissioner Edward Davis,
    and the Rose Kennedy Greenway Conservancy, Inc., Defendants


    “This decision clears the way but does not order the plaintiffs and other protesters to vacate the site and request permission to set up tents or other equipment for expressive purposes, should Occupy Boston wish to continue its association with the Rose Kennedy Greenway Conservancy. Overnight sleeping and living at Dewey Square are not options under the Conservancy guidelines, however.

    For these reasons and those that follow, the plaintiffs’ Motion for a Preliminary Injunction is DENIED.”

    Unrelated to my point about corporations:
    Judicial opinions seem to be tilting against the little people, too.
    In a MyFDL post, lawyer “dlp67” writes a critique of the above opinion.

    dlp67 finds the judge’s additional attention to mere dicta, the word “occupy” in Occupy Boston, breaks disturbing, new ground for eroding free speech. The judge decided that the acts of occupation by Occupy Boston protesters is protected free speech but that the protesters’ choice of word “occupy” is not protected free speech and therefore subject to forceful removal…

    Money as speech is so much easier and efficient if it is true, as it seems, that politicians are purchased at fire sale prices. In a bidding war for congressional assistance, however, I fear the little people would have a hard time raising the funds to keep up–or have too diverse an agenda.

  36. pdaly says:

    Affidavit from plaintiff Jennie Seidewand explains the risk to her for being arrested while excercising her free speech rights. As an admissions officer for children’s summer program, she could subsequently lose her job and be prevented from ever working in her field again.

    “11. Since the arrests of Occupy Boston protestors on October 11, 2011 I have feared a second raid. Every night, I wake up in fear, often multiple times, because I fear a second series of arrests.

    12. I want to be more involved in Occupy Boston, but I am much more nervous about going to Dewey Square since October 11. Since I work with children, an arrest resulting from my participation in Occupy Boston would very likely prevent me from finding work.

    13. I desire to continue living in Dewey Square and being part of the Occupy Boston movement there, in order to symbolically express the message that a more just, democratic, economically egalitarian society is possible.”

  37. bmaz says:

    @pdaly: That post by “DIP67” was written by a lawyer? Really? Then it is a lawyer that knows not the difference between dicta and holding. I have not reread McIntyre’s decision, but read it very closely when it was issued. It was a bit rambling and sloppy, but the core decision is undeniably correct and compelled under the core decision of Clark . CCNP. No, contra to dip67, it did not create anything new, that is simply baloney.

  38. pdaly says:

    I think “dicta” was my word. I have no idea the difference between the two!

    The issue, as I understand it, was that the judge went beyond the case law and stated that the dictionary term “occupation” was equivalent to a legal “adverse possession” (and dlp67 states that the judge did this even though the city never claimed that OccupyBoston had made ‘adverse possession’ their stated goal) and therefore is not protected free speech, while the judge admitted that the actions of the protesters (pitching tents, sleeping, self governing) is protected First Amendment free speech.

  39. bmaz says:

    @pdaly: Heh, dicta is simply that part of a decision that is just a judge’s editorializing and does not directly involve the specifics of the instant case or the law determinative in deciding it. It is puffery and extraneous material. In the Boston case, the core decision was blatantly and patently obvious under Clark v. CCNV (as I said would be the case well before any of these cases were filed); the other rambling stuff was all massive dicta.

  40. pdaly says:


    Thanks. So judges’ dissenting opinions are also considered just “dicta.” But that comes back later sometimes as new law.

    So rambling by judges does have some downstream consequences. Occupy Wall St, Occupy Boston, etc. might want to rename themselves something more winsome.

  41. thatvisionthing says:

    pdaly, what happened next? Is the decision being appealed? Did Occupy Boston continue, and were there arrests, and were there jury trials? bmaz knows where I’m going with this. The law is what the jury decides, case by case, “We The People…jury…jury…jury…,” if we only were allowed to know what that old word meant when it was written to be used.

    Plus also, bmaz you probably know the answer to this one — am I thinking of Mary’s Civil War case? My mushy brain. I remember reading some legal discussion and I think it had to do with the limits of the court, or remedies after the fact, or something. The court agreed that something wrong had happened (Lincoln acted unconstitutionally?) and yet decided it was powerless to act to fix it, the fixing lay outside their hands. So in your example of other people wanting to use the same public space as Occupiers, the court might well look at that, see the problem, and yet find the fixing outside its hands as it was clearly bound by the clear words and plain meaning of the Constitution. Thing #1:

    CONGRESS SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof; or ABRIDGING the freedom of speech, or of the press; or THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, and to petition the Government for a redress of grievances.

    So in a conflict of users, the people have to work it out between themselves. Which sounds like exactly what Occupiers were turning themselves into pretzels to do, anticipate grievances and ameliorate them. Cleaning up Zuccotti Park themselves, stuff like that. (And, really, were there any people bringing charges themselves against Occupiers, or was it just police acting as “the people”, as if they were the people?)

    Last question, and it’s been bugging me since I noticed it, how was it that the first Supreme Court sat with a jury, and deferred to the jury in the plainest language? Was there something different about that case, Georgia vs. Brailsford, or was it something that Marbury vs. Madison changed? Here all this time I’ve been blaming Sparf 1895, maybe I should be looking earlier?

    Scott Horton’s article linked in there says by 1826 Jefferson was complaining that new lawyers were not being taught what the old principles meant:

    Shortly before his death, Thomas Jefferson noted with disdain that judges were working hard to bury jury nullification. It reflected a pernicious “slide into toryism,” he remarked in a letter to James Madison in 1826. In Jefferson’s view, judges and prosecutors who rejected the jury’s right of nullification were betraying the values of the Constitution and instead embracing those of the British Crown. “They suppose themselves… Whigs, because they no longer know what Whigism or republicanism means.” The fundamental question to put to the “tory” prosecutors who have brought the Heicklen case is simple: what about the First Amendment?


  42. thatvisionthing says:

    @Jingly keys: One of the articles I clicked into about DeChristopher being sent to isolation said the UN is being asked to investigate California prisons:

    Families and allies of California prisoners last week started a petition calling for a U.N. investigation of the state’s use of solitary confinement.

    “[N]ot only do California prisoners face cruel and dehumanizing long-term and indefinite confinement in small concrete cells with no windows, no natural light and no furniture, they also endure frequent episodes of cruelty by guards, inadequate medical care, entirely inadequate mental health services, inadequate access to the outdoors and sunshine, inadequate food, inadequate access to legal counsel, inadequate visitation with friends and family and no opportunities to work or engage in productive activities of any type,” petitioners wrote. “They are effectively locked in a concrete small space that becomes a ‘living coffin’ in which many have been confined for many years, even decades.”

    Come on, UN!

    Petition link (63-page PDF):

  43. orionATL says:



    you’re a good guy and you’re trying to educate non-lawyerly folks to the reality you know as a defense attorney.

    unfortunately, for all your good intentions, your status alone, disregarding the quality of your arguments, results in your squashing (legal term :) ) dissent.

    you cannot deliver ex cathedra dicta to readers here about legal matters, which most of us know little or nothing about, without intimidating potential responders and limiting discussion.

    that’s just one of the limitations of power.

  44. pdaly says:


    There was no jury for the judge’s decision above.

    The Plaintiffs chosen by the OccupyBoston general assembly decided against appealing the judge’s decision.

    Occupy Boston continues as working groups around the city and short term demonstrations.

    There was a separate, secret criminal investigation into a presumed Occupy Boston activist Guido Fawkes.
    Secret until Twitter informed its users that Twitter had received a secret administrative subpoena.
    Haven’t heard if this is still an active case.

  45. pdaly says:

    OT: someone stole one of the “R”s in “strip search” in the title of this post.

    (on second thought, since this comment references the original post, it is on topic, right?)

  46. Bob Schacht says:

    @phred: Don’t forget that most of this degradation has happened because of the AUMF and the perpetual war that we’re in. Our country has a history (WW-I, WW-II, etc) of abandoning our Constitutional protections in war time. That’s what Jerry Nadler told me. If you look at almost all of the bad things that have been happening with respect to privacy issues, and peel off the onion layers of justification, underneath it all, you’ll probably find the AUMF.

    Even this strip search stuff, I bet, is a bit of spill-over from war time practices, because people don’t differentiate between military and civilian life.

    So I hope that once Congress declares the AUMF done, things can start getting back to normal.

    Bob in AZ

  47. Bay State Librul says:


    I used to believe that, but I’ve wandered over to the dark side.
    Have you noticed that all three women on the Court are more compassionate? Maybe our past laws and decisions reflect a more macho interpretation.
    Look at the Masters men’s club…. look at State legislatures who come up such laws in Florida’s Stand Your Ground Law. Why hasn’t that law been struck down
    Okay, I’m stretching but where is our country heading?

  48. thatvisionthing says:

    @pdaly: Wow, what a case. Guy (GuidoFawkes) tweets info about Boston PD. Secret administrative subpoena issued to Twitter to release not only all available info about Guido’s account but also of everyone who used the HASHTAGS Guido used. Twitter informs Guido and goes to court and loses. Too bad First Amendment, we hardly knew ye. Damn the powerless people. Boston PD says Guido posted info from their private website, Guido tweets it was all pulled from public domain. It’s a pingpong of outings with bottomless collateral damage?

    The hacker group Anonymous is said to have broken into the servers used by the Boston Police Patrolmen’s Association in October and copied the information, which was later linked through Twitter as payback for “unprovoked mass arrests” of 141 occupy Boston protesters on October 11.

    A lot of hearsay and fearmongering that obscures the unconstitutional clearing of Occupiers… put a crime against the First Amendment on top of a crime against the First Amendment and that’ll do it… I wonder why the police didn’t just ask their friends at the NSA or the data vacuum in Utah? Can you subpoena the NSA? Do they really not know everything about Guido and the Hashtags (TM), or do they just want everyone who’s ever used a hashtag or retweeted something to be afraid, very afraid?

    This ship is sinking.

  49. thatvisionthing says:


    “put a crime against the First Amendment on top of a crime against the First Amendment and that’ll do it…”

    Like checkers. “King me.” Court says, “You’re kinged.”

    RIP government of, by and for the people.

    pdaly, if there was one thing I’d do if I had Occupy’s ear, I’d have them all mic check what the first Chief Justice John Jay said to the jury in Georgia vs. Brailsford, and what John Adams said in 1771 about the jury’s right and duty. Because they’re not going to hear it from the court now if they go to serve on a jury, and if they talk like Jay or Adams in voir dire they will be excluded from serving on a jury, and the jury that is seated will be told to disregard their conscience and not consider right and wrong and will only hear what the judge selects. (See Tim DeChristopher’s trial.) That’s how sick and stupid the courts have become. The people have to teach themselves and re-learn that due process includes a common sense and justice check and balance that’s gone missing. We’re not helpless and were never meant to be. It’s exactly why Jefferson said “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Governments can pass and the highest courts can uphold the legality of the worst crap in the world (who’da thought? like that never happened, never happened to the colonists), but a jury can overrule any prosecution it finds unjust, case by case. It’s supposed to, that’s its job, it’s what keeps us all together as equal reasoners and happiness seekers. Seems to me the worse the laws and prosecutions get, the stronger the juries would get in opposition. It’s a natural check and a balance, like truing a wheel, and it’s the thing thing thing the Constitution relies on, what makes us a government of, by and for the people instead of just another sad monarchy. Ring, not king. Alive, not dead. A self-healing body instead of host and cancer. “We the people,” each and any of us, have real power in our hands, and not just in voting for empty hypothetical campaign promises.

    Thing thing thing.

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