July 2, 2014 – Arsenal For Democracy 90


Topics: Buffer zones, search and seizure, recess appointments, and Detroit water shutoffs, plus Jameis Winston and the flaws of college athletics. People: Bill, Sasha, Persephone, Greg, Nate. Produced: June 28-30, 2014.

Discussion Points:

– Detroit begins shutting off water for thousands of poor people
– The Supreme Court rules against abortion clinic buffer zones
– The Supreme Court rules that cell phone searches require warrants
– The Supreme Court blocks President Obama’s unconstitutional recess appointments
– Is Jameis Winston everything that’s wrong with college athletics in America — but not the way people think?

Part 1 – Supreme Court:
Part 1 – Supreme Court – AFD 90
Part 2 – Detroit Water Shutoffs:
Part 2 – Detroit – AFD 90
Part 3 – Jameis Winston:
Part 3 – Jameis Winston – AFD 90

To get one file for the whole episode, we recommend using one of the subscribe links at the bottom of the post.

Related links
Segment 1

– Reuters: U.S. high court curbs state limits on abortion clinic protests
– AFD: Supreme Court says cell searches require warrants
Flashback to Salinas v. Texas (2013) on “right to remain silent”
– NYT: High Court Finds Against Obama in Recess Case
– Previous coverage on AFD Radio – Recess appointments case: AFD Ep 36 (Jan 29 2013)

Segment 2

– Detroit News: Groups seek UN aid for Detroit water shut-offs
– Rep. John Conyers: Detroit’s Water Cutoffs: Counterproductive and Coldhearted
– Michigan Radio: Welfare rights group backs UN criticism over Detroit water shutoffs
– CityLab: Outraged Canadians Report the Detroit Water Authority to the UN for Human-Rights Violations
– Michigan Live: U.N. panel calls Detroit water disconnection ‘violation of international human rights’

Segment 3

– Deadspin: Who Does Jameis Winston Think He Is—Joe Namath?
– Deadspin: FSU Athlete Explains Why Jameis Winston Allegedly Stole Food


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Supreme Court says cell searches require warrants

Finally a decent ruling on search & seizure from the Roberts Court: Police cannot search your phones during an arrest without a warrant anymore.

The justices ruled unanimously that police almost always need a warrant to go through the cellphone of someone they arrest. Because phones today hold such vast and personal stores of information, the court held, searching them without a warrant is different from going through, say, the glove compartment of an arrestee.


Civil libertarians hailed the Supreme Court decision on police searches of cellphones as a landmark for privacy in the digital age — but the cops themselves say it could tie their hands during investigations.

oh boohoo. no1curr

Unfortunately this is the tip of the iceberg from the crowd that believes everything is justified for “security,” no matter how proportional. That disturbing attitude was captured in a quote from Jim Pasco, executive director of the Fraternal Order of Police, the country’s largest police union:

“There’s more at stake here than due process.”

I mean, I’m not sure why we’re even bothering with law enforcement, national defense, and democracy if we’ve reached a point where due process is a minor, irrelevant point or nothing more than an inconvenience. It’s kind of part of the point of the U.S. system.

So, put a screen lock on your phone with a strong PIN or password, because those enforcers with a less than consistent relationship to the rule of law might take liberties even after this ruling. Other than that, best of luck.

At least the Supreme Court is on your side on this one. Until you need to find a lawyer to back up your position on that, at which point you had better be wealthy enough to afford a good one, because the Supremes made the public defender system optional if states don’t feel like funding it enough to function.

Non-state surveillance

In an op-ed in the NY Times Sunday Review, Jeffrey Rosen discusses James Madison’s views on privacy and surveillance. In particular, Rosen argues that Madison made a slightly odd distinction between government invasions of privacy (which he wanted restricted) and the same from businesses or other people (which he didn’t really care about much). Then Rosen asks whether that distinction is valid or even still up to date.

In practice, the neo-Madisonian distinction between surveillance by the government and surveillance by Google makes little sense. It is true that, as Judge Pauley concluded, “People voluntarily surrender personal and seemingly private information to trans-national corporations which exploit that data for profit. Few think twice about it.”

But why? Why is it O.K. for AT&T to know about our political, religious and sexual associations, but not the government?


That distinction is unconvincing. Once data is collected by private parties, the government will inevitably demand access.

More fundamentally, continuously tracking my location, whether by the government or AT&T, is an affront to my dignity. When every step I take on- and off-line is recorded, so an algorithm can predict if I am a potential terrorist or a potential customer, I am being objectified and stereotyped, rather than treated as an individual, worthy of equal concern and respect.

Justice Louis Brandeis, the greatest defender of privacy in the 20th century, recognized this when he equated “the right to be let alone” with offenses against honor and dignity.

But he also lamented that American law, unlike European law, was not historically concerned with offenses against what the Romans called honor and what in more modern terms we call dignity. European laws constrain private companies from sharing and collecting personal data far more than American laws do, largely because of the legacy of Madisonian ideas of individual freedom, which focus on liberty rather than dignity.

What Americans may now need is a constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.


Europe is way more aggressive about trying to curb private amassing of data. Meanwhile, both the U.S. government and private mega corporations — aided by the gushing of the American media — are pitching the concept of “big data” as a godsend and cure-all, thus necessitating mass collection and indefinite storage of data. Can’t throw all the data points in the data stew if you haven’t held on to all of them, the logic goes.

And it’s a fair question raised in this article. The phone company or the internet businesses knowing all our private information (and movements and habits) is allowed freely. Yet the government is supposed to be following various restrictions, due to the Bill of Rights — but why? Why don’t the protections extend to the private corporations? We’ve seen time and again that they willingly turn over all their data for “national security” and “public safety” reasons, sometimes without even being asked through a court order.

Our government need not construct a surveillance state unconstitutionally when corporate America will do it for them.

Addendum: On a partially related note, I highly recommend this article by Virginia Eubanks in The American Prospect: “Want to Predict the Future of Surveillance? Ask Poor Communities.”

Marginalized groups are often governments’ test subjects. Here are a few lessons we can learn from their experiences.

On Miranda Warnings

This weekend, following the national drama of the Boston Marathon Bombings and metro area manhunt for the culprits, I’ve reposted & added notes to old posts on handling/prosecuting terrorists in the United States.

I wanted to add a note about Miranda Warnings because there’s been some hysteria over the fact that Suspect Number 2, who was taken alive, had not been “Mirandized” (read the standard notification of his legal rights under the Constitution and Bill of Rights) on the grounds of a “public safety” exemption to the Supreme Court-mandated advisory. First off, it bears repeating that there are no such things as “Miranda Rights.” This is a common misnomer. The rights, as mentioned above, come from the Constitution and the Bill of Rights. They were not invented by the Supreme Court’s Miranda v. Arizona decision in 1966; the court just established guidelines for a succinct set of warnings in an advisory to those being arrested so that they don’t later try to get their conviction thrown out because they weren’t notified of their right to have an attorney present and their right not to self-incriminate. Those four warnings are the ones you hear on television all the time, beginning with “You have the right to remain silent.”

Second and more importantly, he is not losing rights and no one is trampling on the Bill of Rights because the administration has invoked a “public safety” exemption and skipped the reading of the warnings. As I understand it — the “public safety” exemption on Miranda Warnings does not mean that the government will be prosecuting based on evidence obtained by statements made prior the warnings, so rights are not infringed. They usually use the exemption when they already have plenty of evidence — in this case a video has now surfaced of Suspect Number 2 placing one of the marathon bomb backpacks and walking away … so he’s going to jail no matter what he says or doesn’t say to investigators — rather they use the exemption when they want/need to find out quickly about other stuff they don’t already know. For example — they skip the warning of the right to remain silent so that they can ask if there are other bombs set to explode later or if there are other affiliated terrorists in the area. If he admits to having placed other bombs and they haven’t read him his rights, they probably can’t use that as evidence for further convictions, but they can at least find and disarm them. And at any rate, they still can’t compel the person to answer just because they didn’t officially read them their rights. Similarly, if they ask for a lawyer without prompting, the interrogation stops until a lawyer arrives. (This happened in January 2009 with Umar Farouk Abdulmutallab, when he was not Mirandized, after attempting to blow up a plane to Detroit in front of hundreds of witnesses.) Your rights remain whether or not you are advised of them. Not providing Miranda Warnings doesn’t take away rights and it can actually hinder prosecution later — so the exemption is used sparingly to obtain urgent information for public safety not to obtain new evidence for trial.

I also find it hard to believe that a 19-year-old who grew up in American culture wouldn’t know the Miranda Warnings from television — even Chief Rehnquist’s 2000 decision upholding Miranda v. Arizona that he originally opposed noted that the warnings had “become embedded in routine police practice to the point where the warnings have become part of our national culture.” He is in all likelihood well aware of his rights even if they don’t mention them. And that’s all the Miranda Warnings are: a brief mention of your rights under the law & Constitution. The rights themselves don’t change or disappear if the warnings are modified or skipped.