TSA’s Legal Justification for Gate Grope

The Electronic Privacy Information Center has been suing the Department of Homeland Security because it refused to engage in the public rule-making process before it adopted RapeAScan machines as part of the primary screening at airports. DHS responded to EPIC’s suit the other day. While I think their response will be largely successful as written, they’re playing games with the timing of EPIC’s suit so as to avoid doing any discussion or even administrative privacy assessment of giving passengers a choice between being photographed nude or having their genitalia fondled.

The key to this is that EPIC first requested a request for review of whether DHS should have engaged in rule-making on May 28, 2010, before TSA changed pat-down procedures. It then submitted its brief on November 1, 2010, after the enhanced pat-downs were being rolled out. But the issue still focuses on the machines and not the machines in tandem with the invasive pat-downs. So a central part of DHS’ argument is that passengers are given an alternative to the RapeAScan machines: pat-downs. But its filing never deals with the possibility that pat-downs are more invasive than even the RapeAScan machines.

TSA communicates and provides a meaningful alternative to AIT screening. TSA posts signs at security checkpoints clearly stating that AIT screening is optional, and TSA includes the same information on its website. AR 071.003. Those travelers who opt out of AIT screening must undergo an equal level of screening, consisting of a physical pat-down to check for metallic and nonmetallic weapons or devices. Ibid.

A physical pat-down is currently the only effective alternative method for screening individuals for both metallic and nonmetallic objects that might be concealed under layers of clothing. The physical pat-down given to passengers who opt out of AIT screening is the same as the pat-down given to passengers who trigger an alarm on a walk-through metal detector or register an anomaly during AIT screening. Passengers may request that physical pat-downs be conducted by same gender officers. AR 132.001. Additionally, all passengers have the right to request a private screening. Ibid. More than 98% of passengers selected for AIT screening proceed with it rather than opting out. AR 071.003.

And by focusing on this alternative with no real discussion of what it currently entails, DHS dodges the question of whether the two screening techniques together–RapeAScans and enhanced pat-downs–violate passengers’ privacy. Note, for example, how the filing boasts of two Privacy Impact Assessments TSA’s privacy officer did (plus an update just as EPIC was last complaining about this technology).

Pursuant to 6 U.S.C. § 142, DHS conducted Privacy Impact Assessments (“PIAs”) dated January 2, 2008, and October 17, 2008, to ensure that the use of AIT does not erode privacy protections. AR 011.001-.009, 025.001-.010. The second PIA was updated on July 23, 2009 and lays out several privacy safeguards tied to TSA’s use of AIT. AR 043.001-010.

Now, as a threshold matter, there’s something odd about DHS citing 6 U.S.C. § 142 here. Its requirement for PIAs reads:

The Secretary shall appoint a senior official in the Department to assume primary responsibility for privacy policy, including – (1) assuring that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information; (2) assuring that personal information contained in Privacy Act systems of records is handled in full compliance with fair information practices as set out in the Privacy Act of 1974 [5 U.S.C. 552a]; (3) evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government; (4) conducting a privacy impact assessment of proposed rules of the Department or that of the Department on the privacy of personal information, including the type of personal information collected and the number of people affected; and (5) preparing a report to Congress on an annual basis on activities of the Department that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974 [5 U.S.C. 552a], internal controls, and other matters. [my emphasis]

See how it says the department has to do PIAs “of proposed rules”? That suggests the Privacy Officer treated the plan to use RapeAScans as a rule and did a PIA accordingly. But this entire filing–which explains why DHS refused to accede to EPIC’s request to conduct public rule-making on the use of RapeAScans–argues that the implementation of the machines did not constitute a rule. But they did a PIA as if it was a rule!

But there’s another thing this filing doesn’t say about PIAs: that Congress demanded TSA publish a PIA on the enhanced pat-downs.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

So while DHS boasts that it did PIAs on the RapeAScans before it rolled them out, it still does not appear to have done a PIA on the groping that serves as DHS’ much touted alternative to RapeAScans, much less a PIA on the two techniques offered together.

Now, DHS is using procedural complaints to object to EPIC’s inclusion of Nadhira Al-Khalili on the complaint, a lawyer with ties to the Muslim community. But their response to EPIC’s freedom of religion complaint seems to suggest they recognize they are vulnerable: suggesting that if a Muslim (or anyone else with documented reason to be opposed to having nude pictures taken and/or their genitalia groped by strangers) were to sue, the procedures would not hold up.

But for now, DHS is treating the RapeAScans separately from the groping so as to be able to argue that in conjunction with the “choice” of being groped, the RapeAScans present no big privacy problem.

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50 replies
  1. BoxTurtle says:

    I guess I’m confused a little bit. The rapescans don’t work as advertised and they may be dangerous even with a single exposure. The patdowns won’t catch anything hidden internally and wouldn’t have caught any of the terrorists we’ve had since 9/11. The shoe bomboer would have been just fine, as would the printer cartrage bomber, the underware bomber, and the Unibomber for that matter.

    We’ve paid for them, so Skeletor has already got his cut. And it would be fairly easy to blame ’em on Skeletor and simply walk away with ObamaLLP’s hands clean.

    So why keep pushing them? What is it that they think the grope/rapescan will find that other methods won’t?

    Boxturtle (I’m gonna pack myself in a crate with a recliner and travel as cargo from now on)

    • Surtt says:

      So why keep pushing them? What is it that they think the grope/rapescan will find that other methods won’t?

      Fear.

  2. PeasantParty says:

    I think Americans need to just wear a toga or a trench coat to the airport. Might as well flash them as you walk through.

    This is absolutely ridiculouse. If the CIA, FBI, and NSA along with all the other initialized agencies can’t do any better at tracking a person trying blow up planes they need to stop operating!

    Seriously! They watch and listen to people constantly, satellite views, traffic and street cams, store cams, wire taps, etc. WTF?

  3. warpublican says:

    I wonder if comparing these scans to rape is helpful. oh well, when rape no longer carries the impact that it once did, you’ll all know why… Read the FDL diary about rape in the military – yawn – I mean what’s so bad if a couple of our soldiers are scanning their female counterparts…

    • BoxTurtle says:

      I wonder if comparing these scans to rape is helpful.

      From the TSA’s perspective, probably not. Technically, the scans are a violation of the peeping tom act and the pat down would be gross sexual imposition rather than rape as there is not supposed to be penetration. Though some victims of the pat downs have stated otherwise.

      Boxturtle (if looks like a duck and quacks like a duck, call it a duck)

      • Sebastos says:

        I agree. What is more, judging from certain comments in other threads, victims of previous rape or molestation appear to find the “gate rape” characterization more apt and compelling, and the gate rape procedure itself more intrusive and violating, than the rest of us do – not less. So the comparison to the experiences of a known victim supports, rather than undermines, the use of the term “gate rape”.

        • jpe12 says:

          When we talk about intrusiveness and government procedure, we’re talking about the much-ballyhooed reasonable person; the eggshell skull case of PTSD sufferers doesn’t enter the legal equation. As a matter of policy, the government may take that into consideration, but they’re not required to.

        • Sebastos says:

          As usual for you, you’re taking accepted legal precedent as the only relevant consideration, which in this case is an indefensible way of thinking.

          I doubt seriously that you’re right even about the narrow issue of the legal precedents involved. Some courts have used a “reasonable woman” standard for cases where the female perspective is particularly relevant, and explicitly rejected the applicability of the “reasonable person” standard in such cases, despite its entrenchment in prior precedent.

          Those judges understood what you seem to be determined not to understand, namely, that the Fourth Amendment was specifically designed to be understood in an open-ended way that cannot be reduced to a narrow legal formula, and the Ninth and Tenth Amendments were included in the Bill of Rights specifically in order to override any and all narrow interpretations of legal precedent with regard to its guarantees of rights. (And, yes, I do mean narrow interpretations specifically; the force of the Ninth and Tenth Amendments asymmetrically favors broad interpretations over narrow ones, so that precedents broadening the interpretation of the Fourth Amendment would be more binding than those narrowing its interpretation.)

          Not only private citizens reflecting on their rights, but even sitting judges facing a body of precedent, are free to interpret the Fourth Amendment directly, and to broaden its interpretation in the face of existing narrow precedent if their direct reading of the Fourth can justify that. Judges interpreting the Bill of Rights are like Protestant bishops who can read the Bible for themselves in the light of their own conscience, rather than Roman Catholic bishops who must be bound by canon law.

          But, regardless of any and all legal precedents, any approach to Fourth Amendment rights against unreasonable searches involving bodily contact that fails to take the experiences of rape and molestation victims into special consideration is morally and intellectually bankrupt, period.

    • amghru says:

      I have to agree with this one point from the troll. Over the top rhetoric isn’t going to change anything. The scans are terribly intrusive and the pat downs are worse. The thought of having to go through either of these procedures, or subject my family to them, will definitely keep me from ever flying.

      I understand how women who have been sexually assaulted hate this and I sympathize as much as I can as a man, but it is a disservice to all sexual assault victims to call this rape when it most certainly is not. Rape victims deserve more respect from us, and especially from women.

      Boxturtle (if looks like a duck and quacks like a duck, call it a duck)

      And if it looks like a chicken and clucks like a chicken then don’t call it a duck just because they are both birds.

      • PJEvans says:

        And it’s an invasion of privacy to have scanners that show your naked body to anyone on the other side of that machine, and whoever else gets access to the scans – because we don’t know who has access and how long those scans are saved.
        Maybe you don’t mind that, but a lot of the rest of us do. And the ‘patdowns’ aren’t an improvement.

  4. Scarecrow says:

    Looks like the legal issue is whether the administrative decision to impose the scans and/or the patdowns should have been made via a formal rulemaking, with notice and comment, plus the statutorily required studies when such a rulemaking occurs, as opposed to a mere administrative action that might have required none of these.

    On that point, the fact that they voluntarily did a study of part of this does not seem to resolve the legal issue. They could have decided it was good politics to do the study, since they could have foreseen the procedures would raise privacy and constitutional claims, and they anticipated Congress would want to know they did the study. It was just political CYA.

    Agencies hate going through the hassle and delay of rulemaking; they’re rather pretend their actions are purely administrative and don’t require formal rules adopted via the cumbersome APA.

  5. beth meacham says:

    One point no one has been mentioning: not all airports have the scanners. If you go through one of them, and are carrying metal in your body (artificial joints, rods, screws, etc.), you will be subjected to the punitive “enhanced pat down”. There is no choice. You’re going to be groped, even if you’re willing to be pornoscanned.

    • BoxTurtle says:

      Yet if you are carrying a non-metallic gun (Available at my local firearms show) or a flattened pancake of RDX over your belly, you’ll be waved on through.

      Boxturtle (Still likes the idea of a vinegar soaked Depends)

    • IntelVet says:

      Pretty confusing what you wrote.

      Problem is with the porno scanner, the Terminator could be scanned and it would report no metallic substance. It is worse than useless, that is, unless you are collecting nude pics.

      The same with “groping”, though slightly better than the porno-scan.

      Nothing there will deter a determined attack, ever. Though not public, from time to time, even Israel has been embarrassed.

      I don’t know if you remember, but, just after 11Sep01, there was a quota system for pat-downs. Crew-members were singled out simply because they would, generally, not complain for fear of losing their jobs. I remember seeing as many as six crew-members spread-eagle against a wall. When TSA came in the obvious quota system was hidden and things seemed more “random”.

      It is all theatre in order to reassure the idiots amongst the traveling public. Unfortunately, most of those idiots seems to have migrated to the “village”, promoting their stupidity in public. bin Laden must be laughing his arse off.

  6. RonMan says:

    Sorry, I’m as liberal and pro civil rights as anyone, but I am tired of these ridiculous articles and complaints about airport screening. Can any single person in the universe look me in the eyes and say that they think no one would care if a plane goes down due to terrorism? Can you imagine the calls for impeachment, and the crackdown on all rights in this country, if a plane goes down!?!? Everyone would want to know why there wasn’t better security, why people were not properly screened, etc. I’m not defending the TSA, but get real folks. Also, you don’t have to fly.

    • Kassandra says:

      It’s a slippery slope of losing our civil/constitutional liberties, Mr. Liberal man and if you can’t see that, well, welcome to the 4th Reich.
      I swear, many fairly intelligent people just can’t/won’t see past their noses as our democracy is eroded little by little.
      Plus: THEY DON’T WORK!

      It’s just more $$$ at our expense 30 billion to this date and for what?
      Read Boxturtle’s post @ 1

      • Margaret says:

        I swear, many fairly intelligent people just can’t/won’t see past their noses as our democracy is eroded little by little.

        Boiling the toad….

    • BoxTurtle says:

      Can any single person in the universe look me in the eyes and say that they think no one would care if a plane goes down due to terrorism?

      We’re pointing out that the rapescan and pat down gropes aren’t bying us any additional security over the old metal detectors and pat downs. Neither of those methods would have caught the 9/11 bombers, the underware bomber, the printer cartrage bomber or the shoe bomber.

      It’s damning that even the Israeli’s, with their obsession for security, have rejected both methods.

      Boxturtle (Would we be using the rapescan if Skeletor hadn’t had a financial interest in them?)

    • Margaret says:

      So, tell me Mr. “Liberal”, when all empirical evidence points to the fact that these intrusive searches don’t work and they are not carried out on aircraft coming INTO the United States where any hypothetical bomb would most likely be coming from, why is it okay, in light of those indisputable facts to surrender liberty for a very questionable amount of “safety”?

      Also, are you familiar with the quote: “He who would surrender essential liberty for security deserves neither liberty or security”? You know what? I call bullshit on your “liberal” claim. You may be “liberal” in the Mark Penn sense or the Lanny Davis sense but those guys aren’t any more liberal than Glenn Beck.

      • Kassandra says:

        I think it’s a troll. they seem to be hitting & running here more frequently as Huffpo isn’t much fun anymore.

        • BoxTurtle says:

          Tough to tell in this case. He’s spouting the same reasonable lines that ObamaLLP would like people to believe, perhaps it’s an education issue rather than trolling.

          Though I must admit, it sure seems like pro-ObamaLLP trolls pop up very quickly anymore when a thread hits a hot topic that is likely to generate anti-ObamaLLP posts. I’m wondering if ObamaLLP has implemented a “Kick the DFH’s” team that looks for such things and responds with talking points.

          Boxturtle (Do you smell boiling toad?)

      • earlofhuntingdon says:

        It’s false to claim to be a liberal, then use the strawman of whether others want an airplane to go down, as if these airport gropings and screenings enhanced security – decreased the chances of a plane going down owing to an act of terrorism – or were more effective and less intrusive than other readily available means to do so.

        It’s that last part that gets to the heart of the public part of the rulemaking process. That’s because it deals with how the government assesses alternative actions and technologies, which resources it chooses and why – all while BALANCING competing goals of truly enhancing security while continuing to uphold a wide array of the public’s civil rights, which the government is explicitly responsible for enforcing.

        The DHS’s current choices seem to have little to do with security or upholding civil rights, and much to do with enhancing government’s power at the expense of those two other publicly touted goals.

  7. Kassandra says:

    I’m not nearly as smart as Marcy; but when wimmin who’ve been sexually assaulted prior to walking into this situation…or even men who may not even know this is going on yet, are assaulted at the airport by thugs with a 3rd- 6thgrade education…..isn’t obvious what’s going on here? to mine eyes, it
    ‘s the dehumanizing/degrading of the population who wants to fly?

    I mean there have already been many reports of abuse and outrage of American citizens by these techniques while the baggage and freight sails thru with no checks or scan to mention.
    It just seem to be conditioning behavior by our government which Gods only know ( but I’m certain have the same suspicion I do) will lead to.

    PS: By the way don’t pay the troll above.

  8. fatster says:

    O/T with apologies. CIA and State:

    WikiLeaks cables: CIA drew up UN spying wishlist for diplomats

    “One of the most embarrassing revelations to emerge from US diplomatic cables obtained by the whistleblowers’ website WikiLeaks has been that US diplomats were asked to gather intelligence on Ban, other senior UN staff, security council members and other foreign diplomats – a possible violation of international law.
    . . .
    “The Guardian has learned that the intelligence shopping list is drawn up annually by the manager of Humint (human intelligence), a post created by the Bush administration in 2005 in a push to better co-ordinate intelligence after 9/11.”

    LINK.

  9. missquery says:

    With all the talk about whether or not being groped with dirty gloves is or is not akin to sexual molestation (it very much is in my view) no one has yet remarked the incongruity of it. Every month some 15,000 – that fifteen thousand! – people die in hospitals of “medical mistakes.” 15,000 month after month, year after year. Thousand are killed each year by drunk drivers. Technology exists to prevent drunk drivers from driving – but no one insists upon. Protocols exist to reduce medical mistakes, but there is no national cry for action.

    In this context, gropiscan looks much more like a money and power thing than any real desire to save lives.

  10. tanbark says:

    Same tecnnigue as Iraq:

    “Don’t want us occupying your country? Then you’re Al Queada. BAM! BAM! BAM!”

  11. donbacon says:

    I just returned from a trip where I intitiated travel in two relatively small airports. In the first, when I went through security, only the metal detectors and not the scanners were in use. In the second after going through the metal detector everyone was being scanned.

    I said no scanner for me. The TSA guy said in a loud voice “We Got an Opt-Out” and asked me why I didn’t want to be scanned. I said “Doctor’s orders.” I was supposed to be intimidated, apparently.

    Then after I went to the designated spot another TSA employee first offered a private screening (I declined) and then explained that he would pat me down with the fronts of his hands and when he got to sensitive areas — buttocks and crotch — he would use the backs of his hands. It was totally stupid and while civicly invasive, not really physically invasive. He also felt around my waistband. I had left my billfold and a pen in my pockets — the TSA guy aked for them and said that he had to put them through X-ray. More stupid.

    One problem, besides the civic invasion, is that your personal stuff (I never check baggage) is still on the metal detector output tray, and not under your control, while all this is going on.

  12. gesneri says:

    I love the statement that no one has to fly. As if anyone who has to travel in the course of their employment will remain employed after telling their employer they will not fly. I also like the statement that you can “request” a pat down from a same-sex officer. Why must that be a “request”. Why isn’t that a requirement? People, we’re being treated like criminals without even having been charged with a crime.

    • Sebastos says:

      I agree entirely. The whole “consent” thing is ridiculous. Maybe some people have a choice whether or not to fly, in a practical sense, but others don’t. Employers and others with coercive power (in certain circumstances that will, no doubt, include judges) who know you can go from coast to coast in a single day, will feel free to demand that you do so, and will not be interested in whether or not you are willing to submit to TSA gate rape. For those of us who do not have access to private jets, commercial airline travel is the only way of accomplishing that.

      • PJEvans says:

        I’d like to see what would happen if all elected and apointed officials (except the president and the VP) were treated like the rest of us in airports.
        (Actually, I’d like to have a law that they don’t get expenses paid if they don’t travel on commercial airlines and don’t stay in hotels. And the reimbursement level is coach class and Motel 6, not first/business class and luxury suite.)

  13. maximumlite says:

    What about people like me that have molested by the same sex as a child,I can’t tell you the outcome if someone groped my genitals in a pat down. I think I would lose it and try to do as much harm to the person groping me as possible. I said as a child that if someone ever touched me again in life I would try to defend myself to death. Therefore I will never be able to fly again in my life as I don’t want to go to jail for trying to protect myself from a pervert. Think about it if you take a job where you know you will be feeling other peoples “junk” there is something wrong with you. This is also a dream job for people who want to feel other peoples private parts. Maybe every so often the screeners should be run through the scanners to make sure that they are not sexually excited as the scan would sure ennough show it on the males anyways and I am sure they would not object to it.

        • Sebastos says:

          The thought had occurred to me as well. If so, it seems to have a different mission than most other trolls. It pushes submission to authority and conventional wisdom, and not any particular position with an obvious effect on any business’s bottom line. I wonder if it could be working for the White House?

          In any case, whether it’s really a troll or not, its comments have led me to some reflections worth having, which is more than I can say for most trolls.

        • jpe12 says:

          I won’t be here long. I was a long time Dkos member, but the site just irritates me now; this place is a way station until I find a different spot.

      • jpe12 says:

        TSA’s arguments in the alternative sound pretty strong. Emptywheel agrees: “While I think their response will be largely successful as written.”

        Do you have anything substantive critique of the arguments that the new procedures aren’t rules for APA purposes or are interpretive rules?

        Thanks in advance for a non-inane response.

        • Sebastos says:

          Thanks in advance for a non-inane response.

          You should talk about inane responses – you who wrote a one-word response “No.”, without any attempt at explanation or justification (jpe12 @ 49), to my seriously intended question (Sebastos @ 43) as to whether those implicated in framing Bradley Manning (if indeed he was framed) might themselves be subject to prosecution for things like unlawful detention, in the commentary on Jane Hamsher’s “Bradley Manning and the convenient memories of Adrian Lamo”.

          A constructive response – which you chose not to provide – would have offered some insight as to the reasons for the answer. Also, if indeed such a prosecution is not possible under existing U.S. law, a constructive response would have included proposals for changing U.S. law, or applying or changing international law, to avoid allowing those guilty of a frame-up to escape unpunished in the future.

          Amnesty International has stated that there should be no safe haven (anywhere in the world) for torturers. It should equally go without saying that there should be no safe haven anywhere in the world for those guilty of a politically motivated frame-up of an individual for crimes he did not commit, in an attempt to intimidate potential whistleblowers worldwide from speaking out.

        • Sebastos says:

          TSA’s arguments in the alternative sound pretty strong. Emptywheel agrees: “While I think their response will be largely successful as written.”

          She means that their response will likely be successful within the current court system. I’ll take her word (not yours) for that. That doesn’t mean that the TSA response is strong in any other sense. As usual, you’re giving the law more credit than it is due.

          The U.S. Constitution is, generally speaking, something for Americans to be proud of. U.S. constitutional case law is, generally speaking, something for Americans to be ashamed of.

          See also my comments on Michael Whitney’s “Rape victim arrested by TSA for refusing groping”, where I provide links to information about some of the most infamous cases in which the Supreme Court willfully and culpably misconstrued the Constitution.

  14. Sebastos says:

    It’s pathetic – and ironic – that the court system has culpably distorted and misrepresented the plain meaning of the Fourth Amendment to the point where EPIC must resort to such arcane legal maneuvers in order to have even an outside chance at a successful court challenge to the outrages perpetrated by the TSA. Then again, extremes of intellectual dishonesty and moral depravity are merely par for the course for our legal system. Many liberals in the middle of the Twentieth Century mistook the anomalous Warren Court for a historical norm. The actual historical norm is closer to the current reality: the Supreme Court has typically been the last bastion of reactionary authoritarianism, and the lower courts have generally been little better.

    Neither Hamilton nor Madison originally wanted the Constitution to include a Bill of Rights, because they were concerned that any specific enumeration of rights might open the door to legal sophistries that could override an intuitive appeal to natural rights, and reduce the guarantee of rights to a set of narrow technicalities, meaningless in practice and understood only by lawyers. When Madison saw that the sentiment in favor of a Bill of Rights had become so overwhelming that it could not be forestalled, he insisted on writing it himself, and incorporating the Ninth and Tenth Amendments as a precaution against the adoption of narrow technical interpretations.

    Our present courts, however, have managed to rationalize away the Fourth Amendment, despite Madison’s best efforts. Congratulations, jerks.

  15. Sebastos says:

    I wrote in a comment on Ruth Calvo’s “Memo: medical safety isn’t hard”:

    We need to devote a considerable fraction of our effort to expanding the boundaries of the feasible, and not just to working within them as they currently exist.

    It occurred to me that this remark is just as applicable to the current discussion as to that one. Far too often, we treat court opinions – especially those of the Supreme Court – as if they were deliverances from a divine oracle. That presumption can amount to a self-fulfilling prophecy, or even a self-sustaining bewitchment. Snap out of it!

    At times it may be necessary, for coldly instrumental purposes, to give consideration to what will fly with our current court system. But we should never let ourselves – or anyone else outside an actual courtroom – get away unchallenged with the presumption that court decisions have any moral authority beyond what their reasoning supports, or even that they can override the Constitution they profess to be interpreting, and control what rights we do and do not have.

    Even in a purely practical, instrumental context, the idea that we don’t have a choice is at most a half-truth. Court opinions can inspire awe, respect, and voluntary obedience that extends far beyond anything that can be elicited by force. We have a choice whether we will give them that extra, and we should never forget to ask whether (and when) they deserve it. In some cases, our actions can even influence the legal system itself. Where would civil rights be today if the protesters of the 1960s had been in awe of the legal system? Does anyone seriously doubt that current legal precedents were influenced by civil rights protests?

    Oracle? More like an orifice.

  16. Neil says:

    Chris Hedges on Obama:

    “a disaster, a poster child for the bankruptcy of the liberal class…are reconfiguring this country into a form of neo-feudalism”

    @42:07

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