Anticipatory Warrants

Orin Kerr bloggged yesterday about anticipatory warrants. He thinks they conflict with the text of the 4th amendment, because

The Fourth Amendment states that "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants that issue without probable cause; the probable cause comes after the warrant has been issued.

[...]

Note how Breyer replaces the textual requirement that "no Warrants shall issue, but upon probable cause" with a somewhat different inquiry into whether the warrant "can help assure that the search takes place" when probable cause exists.

I posted a comment on that thread, basically making the following point:

A judge's role, in issuing a warrant, is to decide whether the facts, as represented by the police, constitute probable cause. It is not the judge's role to test that representation. If the police turn out not to have told the truth, then the warrant can be challenged, and retroactively invalidated.

Here, the judge is giving the police exactly the same trust: to say that the event that would constitute probable cause has happened. What difference does it make whether the police make that determination before or after the warrant is issued?

I don't see anything in the text of the amendment that says the probable cause has to exist at the time the warrant issues. All it says is that the warrant shall not issue except on probable cause; it doesn't say whether this probable cause has to exist at the time the warrant issues, or at some later time.

And this way, the police can't claim that they didn't know what was relevant. They've been told in advance what to look for, and if it doesn't happen they're on notice that they can't do the search.

Another poll

Patrick Ruffini is running another Presidential straw poll. This time, he's put up 12 candidates: Gingrich is out, Barbour and Pawlenty are in. This is good. Barbour has acquitted himself well in the past month, and Pawlenty continues to do a pretty good job in Minnesota. Captain Ed seems very impressed with Pawlenty, and it's mostly on that basis that I went for him in this poll. My fantasy candidate is still Cheney. If this were an actual GOP primary, I'd think twice about voting for Cheney, because I'd be concerned about his ability to win the general election. But in an ideal world, I'd love to see Cheney take over the presidency; back in 2000 I expressed the wish that both major-party tickets were reversed, since both Cheney and Lieberman would make far better presidents than their respective main acts.

Unfortunately, Rudy Guiliani is once again far in the lead. All I can say is "what on earth are you people thinking", and refer you to my previous comments. I lived in his NYC, and believe me, you don't want that. I don't want to use the F word gratuitously, especially since in the past he has taken it as a slur against his ethnic origin, but believe me, "authoritarian" is putting it mildly. I shudder to think of what this man would do with the USA PATRIOT act at his disposal. Defenders of that act insist that to date it has been used judiciously, and that the current administration can be trusted not to abuse it, and all in all I tend to believe them; but they will not be in office much longer, and if Guiliani gets his hands on it the nightmares of the Bush-haters may come closer to fruition.

In any case, have your say, and, if you feel like it, comment here on how you voted and why.

You Can't Say That

Some bloggers have been having fun with Oliver Willis's attack on Captain Ed for having the gall to describe Michael Steele as "articulate". Now, in responding to this attack, the Captain puts his foot in it yet again:

Politics has many inarticulate boobs in office and out

How... sexist!

Short and to the point

The phone just rang.

Me: Hello?
Caller: Hello, this is Shelly Gooden. Can Mike Bloomberg count on your support in the coming election?
Me: No, he can not.
Caller: Thank you.

More oh, oh

One of the major arguments made for term limits is that good people who spend too much time in the capital, hanging around lobbyists and people whose life is government, have a regrettable tendency to go native. Tom DeLay used to be one of the best House members. It's such a pity to see him in his undignified dotage. Someone should have the decency to draw a curtain. (HT: Instapundit)

Oh, oh

Roberts just spoke about the Commerce Clause, and I really really really do not like the implication in what he said. Without actually saying so, he seemed to say that Lopez and Morrison are aberrations.

PS: Sessions is an idiot.

UPDATE (15-Sep): He really does seem to believe the Commerce Clause can cover almost anything. This is not good. I want a justice who does not believe in Wickard, and, should he get the chance, would vote to overturn it. I was promised a Scalia or a Thomas, and I feel cheated. Roberts may be good, but it appears he's no Thomas, and not even a Scalia.

Men Crying

Instapundit has a post about men crying. Apparently this doesn't go over very well in the macho USA. Ankle Biting Pundits and Ann Althouse both think that a Senator shouldn't cry at a confirmation hearing, and the Instawife thinks police chiefs who've been through hell shouldn't cry on camera either.

My mind goes back to Bob Hawke, who was famous for crying in public. At the most convenient times, too.

The first time I remember was when he was "forced by his conscience" to defy his party discipline in order to vote for sending peacekeepers to the Sinai (to supervise the Camp David treaty). This was, of course, before he became Prime Minister. His support for Israel, in opposition to the general anti-zionism in the Labor Party, was mostly genuine, I think; but this display didn't exactly hurt him with the press, or with Jewish donors.

The second time was when, just when he needed a boost in the polls, he revealed that his daughter was a drug addict, and he cried about it, and his vote among female voters went through the roof.

The third time was when he confessed to having cheated on Hazel, and cried genuine tears of bitter remorse, on TV. By that time we were used to the sight, though, and I'm not sure how many people bought it.

Silent Running is back

After its host went down with all hands (and all backups), Silent Running is back up. Not quite its old self, yet, but There Is Hope. And Trebuchets.

Outrage

It just gets worse. This is unbelievable.

Amtrak had decided to run a "dead-head" train that evening to move equipment out of the city. It was headed for high ground in Macomb, Miss., and it had room for several hundred passengers. "We offered the city the opportunity to take evacuees out of harm's way," said Amtrak spokesman Cliff Black. "The city declined." So the ghost train left New Orleans at 8:30 p.m., with no passengers on board.

(from Brendan Loy, via Instapundit)

Anniversaries

Today is the 11th of September, and most people are remembering what happened four years ago, and of course it's on the minds of many bloggers. To me, though, while associating the date with the event is unavoidable, it doesn't feel like the anniversary. 11-Sep is just a date. In my memory, the event happened, not on 11-Sep, or even on 23 Elul, but on the Tuesday of Selihot, which this year will be on 27-Sep.

I also associate the event with the primary election, which this year will be in two days, on Tue 13-Sep. Four years ago, I got up early to attend the Selihot service, and then went to vote against Michael Bloomberg (and for Herman Badillo) in the Republican primary. I first heard the news of what had happened on my way home from voting, and spent the next few hours watching it on TV, so the association with Selihot and voting is strong, while the calendar date doesn't really mean anything to me.

Which is all a way of wondering about the phenomenon of anniversaries. Why do we observe them? Why do they hold meaning for us? What triggers our memories of old events and people, and why is the calendar usually one of those things?

Logistics

Everyone's been asking, over the past few days, why it took the federal aid so long to get to New Orleans. The following response by Joe Ellis (originally written for a discussion in rec.arts.sf.fandom) explains in clear terms just how difficult it really is to do.

---

It's clear that a lot of people criticizing the speed of the response have no concept of the logistics involved in a relief effort of this size.

First: The complaints about "Why weren't the supplies pre-positioned?"

Predicting the path of a hurricane isn't an exact science. Landfall could have been anywhere over a thousand miles of coast. Where do you store them? Look at the criteria you need:

1) Must be far enough inland to be out of reach of the main strength of the storm. This means a minimum of 100 miles, preferably twice that for depots to be really safe.

2) Must be secure long-term storage. This pretty much limits it to military bases... and there really aren't a lot of them that meet #1 but are still close enough to provide timely relief.

3) Must be on the freeway net, and with both rail and air access. Roads are OK for moving limited numbers of supplies, but are subject to flooding and other disruptions. Rails as well, but a railway can be rebuilt much faster than a highway. Air is good for fast response, but is very limited in the mass of supplies that can be lifted. For real heavy-lift capability, you need a working airfield at the other end as well. Helos are fine for distribution, but have a limited operational radius and lift capability. You need them close enough to make a lot of short hops to employ them effectively. They can't operate effectively from as far away as your depots, so clearing landing fields in the disaster area needs to be a priority.

The facility must be large enough to store both supplies and vehicles.

These criteria are very limiting - there aren't a lot of places that meet all these needs.

Now - people. How do you staff all this? Military personnel are the obvious choice... but they have other missions, too, and training missions to perform as well. This means the vehicles can't be stored loaded, and even when not deployed overseas they have to have transition time to change missions.

OK... so your storm is coming, and the alert goes out, you put your men and supplies on the trucks and roll... but wait a minute. Where do you roll? What do you need? You can't tell until after the storm hits and you begin to get damage assessments! So, you gather the people, prepare the vehicles, fuel everything... and wait until you know what you need to take and where. This means waiting for the storm to clear, and for people to get into the area and assess the needs - and what existing infrastructure is available to support the efforts. This generally takes 24 hours or more to get an accurate assessment after the weather clears... and don't forget that while the weather is getting good over the disaster area, your nearest depots are probably getting pounded, and may well have their own problems.

Now... with this storm, you've got almost all major bridges into the area down, rail lines broken, the river channel has undoubtedly shifted in spots, the roads are flooded, and there's no place to land aircraft on the debris-covered runways. So - trucks aren't going to cut it for this mission - unload them and reload on heavier transport vehicles. Let's remember, too, that once these vehicles get rolling and into the area, odds are they're going to be cutting and bulldozing their way in. It's not going to be a 60 MPH highway run - when they get into the disaster area they'll be doing well if they can average 20 MPH.

Now, let's assume for a moment that they did pre-position supplies in NO... where would they be now? Probably floating out into the gulf or under 20 feet of water... because the industrial and warehouse areas of NO were the hardest hit, being on the waterfront. Now you're looking at even more time necessary to bring in relief supplies.

---

That said, while the federal response is now getting going, I have to wonder why there weren't, for example, air drops of food and water.

Air drops aren't particularly precise, and take a lot of linear space. How do you drop them in sufficient numbers without dropping them on someone? The places that could be used as air drop targets are full of people. Also, airdrops are done at very, very low altitude from fixed wing aircraft - usually C-130s or larger planes. It's damn dangerous to fly a plane that big at low altitude through a city, especially a city where you can't depend on light poles and antennas being where they're supposed to be.

You have two options with airdrops:

1) a parachute drop from altitude, which gets the planes up above the terrain, but can spread your drop over a quarter mile of width or more (depending on winds, altitude, and airspeed) and possibly a mile or more of length (depending on how much you have to drop).

2) a free-fall drop from as little as 10 feet altitude, just rolling it out the back. This allows much greater accuracy in the drop, but because the stuff is still moving horizontally at over 100 MPH when it hits the ground it requires a long, straight approach and climbout, and a smooth cleared area for landing the load to prevent tumbling.

Neither one of these approaches are/were suitable for getting equipment and/or supplies to the people in the Superdome or the Convention Center. If you look at the satellite photos, it's clear there were no straight approaches and/or suitable drop zones for either kind of drop. The parking lot at the Superdome, while it might have been large enough, is choked with cars and trash, and under water. There's also the small matter of the light poles...

---

I do think that there should have been a greater sense of urgency, and that this does indeed reveal a certain inefficiency in DHS.

It's impossible for an organization like FEMA to respond any faster, or for any other mythical organization you might care to invent to do much better. It takes time to respond to events like this. Yes, it's painful to watch, but it's reality. There is no way to mount a response to an event like this without taking several days to prepare and transport.

Now that things have started moving, one of the biggest problems is going to be traffic control of inbound relief materials and outbound empties, and getting fuel to the transport vehicles.

I only disagree with the partisan bickering because I don't really expect much more from government agencies.

The "partisan bickering" I've seen here and other places is far worse than that, it's some of the foulest, opportunistic, deliberately misleading and flat out lying I've ever seen, and completely ignores the physical realities of what it takes to move people and supplies into an area that has had most of its infrastructure destroyed... It's also focused on one small area of NO when there are over 90,000 square miles of devastation. The damage done by failed levees pales into insignificance when compared to areas to the east that were completely wiped off the earth. It's not a matter of blaming anyone for the failures of systems that, according to some stories, could never have been improved to the point of being able to withstand this storm, rather its an unreasoning rabid-to-the-point-of-psychopathic-obsession hatred of anything to do with the administration that is making people spew such destructive and counter-productive venom (and repeat it without critical analysis of the actual facts) with no regard to the actual circumstances. There's no magic in the world, folks, that will allow you to wave a wand and move supplies for hundreds of thousands of people into an area in two days over submerged roads, into devastated port facilities, and over broken rails. It just can't happen. I don't care if FDR himself came back to lead the effort - there are finite limits to how fast things can be done, and 3-4 days before relief gets into an area is the fastest anyone can expect. This is nothing new or unusual. There's a reason that you're told to have 5 days of food, water, and medicine in your home disaster kit.

The FEMA response has been on this schedule. Given the complete lack of a communications infrastructure, if anyone thinks they can do better you're certainly welcome to strap your ass into your car and drive down there to help out. Frankly, I'm sick of the whining from people who aren't on scene, have no idea of either the situation or the realities of logistics, and have nothing better to do than snipe at those who are trying to do the best they can with the information they can get out of the area.

People are dying out there... and more of them are going to die. It's cruel and cold, but that's the truth of it. That's why it's called a disaster. The task now is to get people out, first and foremost, and to hold the number of post-storm and flood fatalities down.

Katrina Donations

Yeah, I know, I'm very late to the party. In the first week of the recovery I put up some donation links on the sidebar, but I didn't do a post saying that I'd done so, or saying anything about the particular charities I put up there. Oh well, better late than never. If anyone reading this has not already maxed out their charity budget (and if so, why haven't you?), please consider donating that extra dollar or two to one of these funds.

So. The American Red Cross, of course, needs no introduction. The reasons to give here are obvious. (And no, none of its money goes to the International Red Cross, which I wouldn't piss on if it was on fire.)

Chabad of New Orleans is there, mostly because the director is a relative of mine (second cousin once removed, I think), so I know a bit first-hand about the work they've been doing until now, and the dedication with which they will approach their new and unexpected work. Their focus is, of course, the Jewish community, since those are the people they knew and worked with before the hurricane, and with a staff of five families, now scattered over three states, they've got their hands full just coping with that burden.

For a hint of how committed these people are to their work, here is a personal account by one of them, who survived the storm and remained in his home in Metairie until Wednesday. Also fascinating is the blog that one of the rabbis kept last week.

The Baton Rouge Area Foundation is there mostly because I haven't seen it on anyone else's list. It wasn't on NZ Bear's list until I added it, and I thought it should be there. This is why. The refugees are going to need help for a long time, and the burden falls heavily on the cities where they are now.

And while we're raising funds for refugees, let's not forget the Jews forcibly expelled from their homes in the Gaza Strip, and in the North of Samaria. Their number and need may not be nearly as great as that of Katrina's refugees, but it's real nonetheless. The One Israel Fund has been raising money for them, and if you've got any spare cash, please consider throwing some of it their way.

One more thing. If you are motivated by this blog to make any donations, please log them with NZ Bear, and be so good as to mention our name...

Technorati Tags: flood aid, Hurricane Katrina

Circumcision and Public Policy

Patterico says, "if it's important enough to say in a comment, it's important enough to post". Well, I've been commenting at length on Eugene Volokh's posts here and here about the recent flap here in NYC over the practise of oral suction during ritual circumcision.

I've also weighed in on the question of banning headscarves (The setup is a bit confusing - my comments are here, and are not linked from the post to which they refer!).

About Those Photo Captions

You've undoubtedly seen the brouhaha today, about two photos, one from AFP, showing two people wading through the water with stuff which the caption described them as having "found", and another from the AP, showing a man in similar circumstances, but described by the captioner as having "looted" a store. Some eagle-eyed commenter noticed that the people in the AFP photo were relatively light-skinned, while the man in the AP photo was clearly black, and concluded that the difference in the captions must certainly be attributable to that distinction; strange that Mr or Ms Eagle-Eyes didn't seem to notice that AFP and AP are two completely different news agencies, but whatever.

Truth to tell, my initial assumption was that the AFP photo was captioned by someone at AFP itself, who presumably was not a native speaker of USAn English, and therefore any comparison between his/her word choice and that of the AP captioner is completely futile. Turns out I was wrong. The AFP caption was written by the photographer himself, Chris Graythen, who is very much USAn, and a New Orleans native and resident (well, now an ex-resident), who took it for Getty Images. And, thanks to the wonders of the WWW, we don't have to guess any more, because we have the word from the horse's mouth (it's way down the page; search for "Jeasus"). It turns out hat he described the two people in the photo as having "found" rather than "looted" the items they were carrying because that is what happened:

there were a million items floating in the water - we were right near a grocery store that had 5+ feet of water in it. it had no doors. the water was moving, and the stuff was floating away. These people were not ducking into a store and busting down windows to get electronics. They picked up bread and cokes that were floating in the water. They would have floated away anyhow.

And it's not as if he deliberately avoided the word "looting". As he says:

I'm not trying to be politically correct. [...] If you don't belive me, you can look on Getty today and see the images I shot of real looting today, and you will see white and black people, and they were DEFINATELY looting. And I put that in the caption.

I did look at his photos from today on the Getty web site. There are 20 images from 31-Aug-05, and I couldn't find any that showed any looting; maybe the ones he's talking about weren't taken up by the agency, or haven't been put up yet, or something. In any case, those who see the whole world though racism-coloured glasses will be disappointed. But then, they usually are, and it doesn't seem to stop them.