but with the courts are going

to find ways to have international law become a self enforcing sort of an item that can be raised by individual parties, these circumstances and these trends which appear to be developing, having the courts make decisions about necessity and having international law be available to individual party litigants rather than being reserve to hike contract parties of treaties are two of the developments which i think bear our inspection because i think each of them could make significant inroads into a necessary power of the president to properly defend liberty and freedom of the united states. one last comment, just throw this out for discussion, we have gone through a series of cases,

the case of individuals, rights of individuals detained in the prison in bob room -- badrum are being discussed. what i think happened in the twisting of eisentraeger, the circuit court of appeals managed to use this formula to provide a result that indicates individuals detained on the battlefield, in prison sittings do not have the same rights as people would in guantanamo or other settings remove from the battlefield.

this has an anomalous and puzzling incentive that if you don't want to comply with -- you house people on the battlefield. to house people on the battlefield seems to be putting the prisoners in incredible jeopardy. it puts those guarding the prisoners in incredible debt pretty and increases the risks of those individuals on the battlefield, the prisoners would have the opportunity to rejoin the battle if they were involved in the breakage of their bondage. so the court has found itself extending rights to the place of it stirred -- absurd extension, the denial of the extension of rights geographically to the

battlefield and realizing by stopping here we provide persons and of not in the best interests of prisoners, and the opinion raises the question, is their situation by which we would have said it is okay to detain them in these settings without full due process rights? maybe we have set up a situation where people can, quote, turn off the constitution by putting people in these settings if they don't have traditional constitutional rights and they express some serious misgivings about the idea that someone can turn off the constitution. i would have misgivings about anybody who could turn off the

constitution. but also have misgivings about individuals who turn on the constitution where it doesn't exist. for me the constitution is to be respected and i don't think it is noble to extend the constitution without amending the constitution or providing of 40 in the document itself. any more noble to turn it on then to turn it off. the courts have been in the business over the last decade of turning on the constitution by extending constitutional liberties and rights that didn't relate to individuals held in the eisentraeger case. now they worry about successfully prosecuting work to defend american freedom as they would be able to turn it off. i don't think anybody can turn off the constitution. i don't think people should seek to turn it on. we should seek to respect the

constitution in places where it is necessary for us to defend the country that we have the right of the president to do so and providing a full range of rights similar to those in criminal settings for individuals who are involved as unlawful, patents against the united states to turn on the constitution would be to amend it unduly. as we deal with the so-called organic law, which i have a little affection or respect for, i think the law should grow when it is amended and not by virtue of some organic process. we have to be careful that we don't make it impossible for good decisions to be made by honest public officials thinking to will fulfil their responsibilities by living up to their oath of office and the law which changes induces two basic things. one is paralysis.

no one wants to make a ruling or do something that would be against the new laws and announce it was improper. that is the thing i worry about the most because paralysis is not consistent with the effective defense of american liberty by presidents. it is the stuff of which difficulty, difficulties encountered and lives are lost. [applause] >> thank you, attorney general ashcroft. join me in welcoming attorney general mukasey. [applause] >> i would like to thank the heritage foundation for doing this. it is a pleasure to be in the company of people who are lot of

folks are braying about the constitution are actually thinking about it. i want to start my part of the conversation with a return to basics and figure out how it is that we got to where we are. my copy of the constitution by will admit maybe i got it for nothing, maybe i didn't get the whole thing. it says executive power shall be vested in the president of the united states of america. it says the executive power. it doesn't say all except a small part of the executive power. it is all of it. the executive power. which i could explain how it is people are spending billions of dollars to be elected president. what would you want to be president without all of the executive power. on the other hand, the powers of

congress to legislate are enumerated. they're entitled to legislate specific subjects and the framers very carefully listed the subject on which they legislate. it is that necessary and proper clause that impact everything to do whatever they can do but it is what is necessary and proper to the other things that are enumerated. not what they think is necessary and proper period. given the fact that congress has limited legislative power, given the fact the president has the executive power and the supreme court by implication took on to itself powers to decide what it is consistent with the constitution and what is inconsistent with the constitution by way of statute, how did we get to where we are now? part of the way, this was a question framed by general

ashcroft. i am not sure why judges went to insert themselves in these issues and this is a trend that started outside the context of war with griswald versus connecticut, a case involving the question whether connecticut can ban contraceptives or not. in point of fact that is a statute that was never enforced. but a mischievous professor decided to take it to court. the supreme court decided to decide it. we were and are off to the races. the reason the race has gone on at long as it has is at various times both executives and legislators branch of government felt it to their advantage to allow courts to decide controversial issues. presidents and members of the legislature have to run for

election whereas judges don't. so if judges can decide controversial questions than it legislators don't have to end executives don't have to. they lean back and blame any result on the court. we can live with that when all we are talking about is day-to-day existence because there is an amount of pulling and hauling back and forth. when it comes to war powers, a lot of folks can get killed. if people have no training deciding on no background and no basis for finding out independently, no background whatsoever might wind up deciding them. it is said that to some people with a hammer everything looks like a nail. and we are now in a position where some folks have a gavel. everything looks like a case.

with the result that we have as you heard lawyers sitting at the elbow of people doing things like selecting drone targets to determine whether that particular drone target or that particular target all is lawful. how are the lawyers finding the law to do that? the only place they could find this is in decisions that have nothing to do with target selection. they have to do with granting or denial of habeas like relief in challenges to custody based on the case ashcroft referred to. so judges who have no background whatsoever in the military for making military decisions are deciding not only to can be held or should be held but the people who should be kept in custody.

a decision they are by no means setting aside but with this they know it or not there also deciding who to make war against. in order to show what distance we have come i wondered you who are old enough to imagine what curtis lemay's reaction would have been to placing a lawyer at his elbow to decide which targets he could bomb and which targets he could not bomb in japan. or what douglas macarthur's reaction would have been to placing lawyers at his elbow to decide where he could invade or not invade and what his troops could do once they got there or what general patton's reaction would be. it is a very sobering thing that we have come to.

judges essentially are told they can open their arms and welcome to the courthouse any controversy that they want because we are here to decide and no case too big or too small. that is not the way the framers envisioned the constitution but it is really up to the electorate at large and the people they elected including members of the legislature and the executive said it right. because they don't say it on their own. there has to beat was put in place limiting jurisdiction of federal courts which has to be red and respected by federal courts and actions taken and decisions taken that protect national security with the understanding that the people who make those decisions have to

face elections. not simply abdicate to those with no responsibility whatsoever to the public at large and can pretty well unless they commit an indictable offense do what they please. thank you very much. [applause] >> thank you to our first speakers for setting the stage. now the opportunity for you in the audience to ask questions and make comments and join the discussion. i will look for the first question. please raise your hand and wait for the microphone to arrive. right here. >> to what do you attribute the

increase in willingness of judges to place themselves outside of the normal bounds of what used to be considered their role? >> is that for me? part of it is the history that i suggested. part of it is what you get in law school. students are trained when they study the law they study in most cases and people to be admired are the great common law judges who made the law. there's not a lot left to be made but statutory interpretation. that challenges the self control of people whose imagination and intelligence carries them beyond the narrow limits like that.

so i think part of the problem is judges are either too smart or not as smart as they think they are. it is important to get judges who are smart enough to decide cases but not so smart they end up with access iq to create mischief and have a good sense of their own limitations. >> you want to comment? >> no. i think that was a very good answer from a person who has sat on both sides of the bench and respect -- i think you are right. i don't have any comment. general mukasey mentioned loss schools. of i can at this point. law professors all the way back to the time went to law school

with my kids called stone age, what professors always hanging on to the court to go farther and do more because they didn't have cases or teaching students and was more exciting to them rather than simply talk about what the law was and to stir up some action to get new ideas into the courts and that has had a profound effect on some judges going beyond what is their authority in the constitution. i might depart from that to ask the next question and ask what is the remedy? how we get judges back in the confines of the constitution? we will give that one to you. >> still the right people to appoint the right judges. we have some judges who if you look at the string of cases we

always find people who are reciting the right kind of restraint. and the restraint is not so much a repudiation of judicial arrogance but a recognition of the idea that there is a democratic process and the people have a role to play and there are ways to change the law that are not for the judiciary and the assumption that -- i have seen it happen at the state and local level and a chance to point over two hundred judges and the entire supreme court of my home state and was grateful for the opportunity but it was a court that prior to my appointment had given the ultimatum. if you don't address these problems in the legislature we will make a judicial determination about this. the idea that the inactivity of the legislative branch is a

matter of dereliction of duty rather than decision point and a bit of not doing something is as much to be considered the public's intend as the point as doing something. we have a failure on the part of the judiciary. we are the last bastion of getting things done and if they don't we have to step in for them. it is really to displace a decision of the people which is not to do anything rather than make a decision for the people to do something which they should have done had they enjoyed our superior intelligence. >> do you want to add to that? >> no. >> we have a question in the back row. >> i was wondering what your interpretation of the president's authority to authorize the assassination of a

u.s. citizen who has essentially denounced his u.s. citizenship and debate about obama and bush's authorization, do you think denouncing the u.s. citizenship is legal authority for the president to then authorize that person has given up their rights and the president can authorize the military to go after him and assassinate him? for both of you. do you think there is that legal authority that by denouncing your citizenship? >> there is a logical fallacy in the question. which is the notion that weather you can be targeted or not has anything to do with your citizenship. back during world war ii there were two groups of senators. one who led off long island and 1 off of florida and they were rounded up by the fbi and tried

before a military commission on direct orders of president roosevelt. one claimed to be a u.s. citizen. by the time the case got to the supreme court decision was issued after they were already dead. the supreme court determined claim of citizenship was irrelevant. once he had decided to throw in his lot with a hostile force and joined a hostile force whether he was a citizen or not didn't matter. same is true of all armies. one of the things and there are a couple things that disturb you about this, the news about the memo that was used to analyze this. the fact that it was in the newspaper all means someone at the department did something he shouldn't. secondly there was distinction made about in that memo apparently, about what the rights of the u.s. citizen are in a situation like that as

opposed to the rights of somebody who was not a u.s. citizen. imagine a brigade of marines confronted with an enemy force some of whom are u.s. citizens and some of whom are not. to make decisions based on do are issued now based on whether they are citizens or not? once he embarked on their conduct he embarked he became a target. i think you know it. >> any follow-up? >> well said. i believe the case law instructed on that, won distinction is the way we treat you as citizens might be in the detention face and dark am not sure it is clear that case was a case where citizenship existed because he was born in the united states but still held by

the courts to be eligible for the conflict. as i recall just as scalia mentioned in settings where detention it could be indefinite but had one choice to suspend the writ which obviously had not been done were charged him with treason. when it comes to actual combat situations, if a person is an enemy combatants they are eligible for treatment as an enemy combatants and i think the rights are arguably different. i think the majority -- they are still deep table for the conflict. >> when those german saboteurs landed during world war ii they landed in uniform and took off their uniforms and buried them on the beach.

when you consider hall vulnerable, that is the most tolerable part of that operation. the only conceivable reason they would have done that that i can imagine be brittle and i haven't seen anyone make this point specifically, can't imagine any other reason that had they been captured by think they wanted to claim they were fighting in uniform -- by burying them on the beach and putting on civilian clothes. the distinction between lawful and unlawful combat and what your rights are or aren't goes down one way and a lot of people know it. the entirety of the preface of the court in the capital case involved in the case is that they fought in violated the rules of conflict by not wearing uniforms. in fraction of the lot of work eligible for the death penalty which was carried out on the majority of the defendants. >> next question.

over here? >> the following question to attorney general ashcroft. using to be suggesting to carry out the president's to protect the country that something might be necessary to statutes where treaties narrowly, is it possible abroad interpretation of international law may increase national security interests particularly where service men and women at conventions, the case where sometimes greater adherence to the rule of international law or national security? [inaudible] >> there are cases in which individuals sought to allege their rights under international

law. they had been abused in that respect. most of those treaties in themselves have provisions which limit the parties that can raise them and and force them to the contracting parties, not to the citizens of various nations. that is what i had reference to. the supreme court specifically declined to and force or consider alleged violations of international law because they hadn't been raised by individuals alleging them were ineligible because they were not contracting parties to the treaty. i believe we ought to abide by our responsibilities in international law. now a president has a right and perhaps a duty to go beyond responsibilities if he thinks it will enhance our ability to defend our freedom.

but for people involved in litigation against the president i am loath to have the ideas that we should expand the number of people allowed to raise that when we enter a treaty understanding is only to be enforced by a high contracting party or another nation. one of the things that was most unsettling came up either concurring or dissenting opinion where one of the justices indicated not only would he support the idea that provisions of the conventions enforceable by individuals and not just nation states that certain provisions that were never embraced by the united states should be enforcing the united states because the reason they weren't ratified were not reasons that were related to the

case and are thought to myself how strange a justice of the supreme court is arguing there are only two kind of international treaties that ought to be appropriate to shape our behavior. the ones we have signed and the ones we haven't signed. i think that carries the international law situation far beyond what is prudent and in the interests of the country. >> question over here? >> attorney general ashcroft. the use of international law, you spoke about its intrusion into the powers of the presidency but isn't there also a danger of the court implementing international laws or bringing that in with discussing constitutional questions as an intrusion on the congress and additionally the

state's? >> i don't think there's any question. i didn't do that well in constitutional law. you can figure that out by my comments today but some of the earliest cases in regard to international treaties and the rights of states as i recall affect whether states deal with wildlife on their own terms or whether international treaties regarding flight paths of geese overruled not only the united states's ability to make contrary decisions to the international treaty regarding preservation of wildlife but also set aside the ability of states to deal with it. i think there is a question perhaps for another day in regard to the constitution of the united states to extent can the constitution be amended through the back door if you will buy the ratification by the

united states senate of an agreement made by the administration with a group of foreign nations changing the dynamics of how decisions are made in the united states without including the states who are the real parties in interest to the treaty we call the constitution of the united states. >> that won't be on the quiz or the final exam. i'm not sure what he said. question over here. >> the question i have, this notion of necessity. the president is limited even by the text of the constitution as in lincoln's habeas corpus case, only to the extent it is possible to prevail. the questions i would have, is

the president limited in the extent to which the president can bypass specific restrictions of the constitution to achieve is more general purpose in situations of war to only the minimum? and in exercising such a power where does the burden of proof why? does it lie with the president? to prove that this is the minimum necessary? or does it lie with those who would challenge the president's use of power to prove that the president has exceeded the minimum necessary? >> on to the categories of fools rush in where angels fear to tread let me address part of that issue. i think historically courts have not given the president the idea

constitution is of no effect here. it would be wrong. the question is at what level of deliberation and consideration must the president show in order to have, if you will, involved himself in the decisionmaking process? historically courts, instead of saying will make this decision for the president, asked if the president made a deliberate decision. were their deliberations? did he just throw a dart? did he have that now white next to a circle of options and do whatever it was? or did he come to a reasonable judgment about this? in the past what courts had requested of the president was there is an awareness whether he

had an intelligent decision based on facts and evidence. not necessarily judicial evidence, always having to be judicial process, a misleading idea. what has happened, we find ourselves in the recent line of cases where the court expressed its distrust of that process and wanted to substitute and not evaluate whether the president made delivered decision on the basis of evidence but we are going to look at what evidence there is and whether we would come to the same judgment. my preference, the judgments we made and i will refrain that and talk about the advice we gave more didn't give. that is not what lawyers do. but i think it is important to

rely on the cases that have basically said the president said if he makes decisions based on reasoning and rational basis we don't look beyond that. that is where we should find ourselves. not that the president doesn't have to observe the constitution. he lives in the constitution and binds everyone but when it comes to decisions made by the president in this respect he has the right to make decisions that are properly framed and don't deserve second-guessing by the court. >> hard to imagine a setting in which that kind of issue would be adjudicated although i had a case to which i believe general ashcroft was a party that would call for a time -- he was party.

i can talk freely about the decision because the supreme court decided that did not have jurisdiction to resolve the issue, but what i found was so long as there was some evidence to support the president's determination, some evidence being the lowest standard known to the law that courts are obligated to defer. if it ever gets to a court which i think it shouldn't in most instances but if it ever does that is the appropriate standard. some evidence. i disagree -- i agree with you on your comment. in the back. >> the question whether or not the president -- is a very old

question. [inaudible] the best book about this -- extra constitutional prerogative. it seems to me that aside from circumstances like the one general mukasey is referring to where you have an individual theoretically legally could not -- almost all those cases people think about those issues where you have structural separation of power problems and the judiciary is instituted to deal with so when people bring lawsuits over whether the president exceeded this, even if you assume he did and i don't over many other things the courts are suddenly -- if you take other constitutional -- all agree there may be some instances where there's an article i vs article ii problem.

there's a different conceptual fashion of the case like you were talking about. >> in reading recent cases i get the impression the people of the united states are not part of the court's understanding of oversight. they expect every policy error or disagreement to be readyable judicially or congressionally. so courts have been in the position of trying to allocate whether something is congressional power or executive power. simple matter is if you were to draw a diagram you would have circles that overlap. there are places -- the tough part is to find out who controls where it overlaps. i think in allocating power to

the congress away from the executive which has been a preference of the court recently which i disagree with and bringing to the bosom of the court the right to displace decisions of the president, the court said somebody has to look after the president and congress is closer to the people than the president and the president -- of the congress can't do it we must and it ignores the fact the most responsive politician in the country to the people is the president. he is the only person in the country elected exclusively to pursue the national interest and he is an individual that people know about. a lot of people can name their congressman or their senator but they know who the president is. most do. the congress has been said gerrymandered that i'm not sure

there's any accountability in the congress and the senate only runs every six years. it is unfortunate that too many of us as well as the courts seem to ignore the fact that the people are in a position to direct what they consider abuses in the executive and i think we should expect them to. i think courts have ignored that and in so doing tended to allocate authority away from the executive toward the congress that they mistakenly believe is closer to the people in my judgment and to the courts which they think if congress can't remedy this then we must. ignoring the fact that oversight by the people is a major expected responsibility of the constitution in my judgment. >> you want to add to that? >> not a lot. it fits most of these

controversies. i recall before my confirmation hearing began i was expected to make what was known as a courtesy calls and various members of the legislature. certainly on their side. or on line for that matter. one of them who will remain unnamed for purposes of the discussion asked me what i thought the warmaking powers were of congress and are blanched a little bit and tried to do my best but feel i could come back with what i came up with which was power of the partisan. all we can do is sign checks? he didn't like the fact that i mostly agree with that formulation. congress wants to extended self. the president wants to extend

himself and the courts generally stayed out of it. they are against one another. if you get resolved in the way we do it, but it is one that is politically responsive as general ashcroft pointed out such that people who make the wrong decisions can be held to account. they don't get resolved in court or shouldn't. >> last question up here. >> i would like to thank all of you for your contributions on how war powers are divided. since one of the major areas of focus has to be the constitution and its original understanding of just wondered whether any of you could speak to either the concerns raised at the constitutional convention about

executive who could make war on his own or about the repeated emphasis on a desire to avoid the balance of power that characterized parliament to leave. >> you want to take that? >> not really but i will. i wasn't at the convention. [laughter] believe it or not. the concern about the executive being able to wage war on his own is great for loss full discussion. but is totally unrealistic to. number one, president is the commander in chief bubble likelihood that on a political matter that he can direct the

armed forces of the united states to enter into a battle, that is a matter of his own whim, seems to be remote given the way generals thank and the way folks think of the pentagon. even if he could i think congress illustrated nicely in the treatment of the administration's attempt to bring people from guantanamo that the power of the purse is substantial and the president decides to do something they fervently disagree with they can squeeze off the money which is what they did. it means nobody can be brought from guantanamo to the united states. so that concern is well taken care of. >> you want the last word? >> thank you for your kindness.

[applause] ladies and gentlemen, you have taken care of what i was going to ask you to do which is thank the panel. we have had a very interesting discussion today. it talks about -- illustrates what the founders had in mind. they couldn't predict everything that would happen. they gave us the constitution that has important allocations of power and the allocations of power sometimes rub up against each other in the three branches of government. we had a good example in these questions and the answers in the discussion today of how that happens but the most important part of it really is what both of our speakers have said which is the ultimate responsibility to make sure things go right is in the people themselves and who they elect. that is a good lesson for us to take away. please join me in thanking our panel. [applause]

[inaudible conversations] >> members of the supreme court last week took a case that looks at whether the constitutional right to privacy prohibits strip searches if a person is sent to jail for a minor offense. that supreme court case is next on c-span2. then a discussion on the future of the u.s. postal service. the senate gavels in at 10:00 eastern. senate majority leader harry reid will bring a package of spending bills to the floor

today. five senate coverage on c-span2. today treasury secretary [speaking in native tongue] -- tim geithner will be at the senate entrepreneurship committee at 10:00 eastern on c-span. later federal reserve chairman ben bernanke on how the most recent economic recession has affected policies of the central bank. under his leadership the report of federal reserve as aimed at stimulating economic growth. ben bernanke will be speaking at a federal reserve bank of boston conference. live coverage at 1:15 eastern on c-span. >> because i am a businessman of which i am very proud and formally connected with a large company, the opposition attempted to pick jimmy as an opponent of liberalism but i was a liberal before many of those

men heard the word and i fought for the reforms of theodore roosevelt and woodrow wilson before another roosevelt distorted the word liberal. >> he was a member of the democratic party for 20 years, switching in 1940. wendell willkie sought the nomination for president. he lost the election but left his mark and political history speaking out for civil-rights and becoming the fourth ambassador for his former opponent, franklin roosevelt. wendell willkie is one of the 14 men featured in the contenders. live from rushville, indiana. >> the supreme court heard a case last week involving privacy rights and strip searching in jail. involved a new jersey man who

was wrongfully arrested for a fight he had paid. he was stripped surge and released six days later after the charges were dropped. the court will decide if this case violates the fourth amendment. decision will come down before the end of the term in june. >> we will hear arguments in case 1045, florence v. board of chosen freeholders. mr. goldstein. >> may it please the court, we ask this court to hold a dam a strip search and arrest in cases of reasonable suspicion. that was applied for route the entire country in three decades after bell versus wolf after administrative difficulty or any apparent increase in smuggling. we are here because the burlington jail and essex county jail require every arrest to stand two feet in front of a correctional officer and stripped naked. >> applies reasonable suspicion

rule to walt arrestees? i thought you were looking at a distinction between balance and less serious offenders? >> we apply to all arrestees. respondents in u.s. bureau prisons draw a line at major versus minor offenders. they do that because they think people who commit more serious crimes might be inclined to greater criminality but our rule is one of reasonable suspicion. there are questions for minor offenders because the class definition is only ones who are -- >> is reasonable suspicion test more easily met if it is a felon detained for serious felony? >> in the view of the courts that considered this question -- in fact -- >> you're going on a case by case basis? >> there is a categorical rule

adopted by the bureau of prisons in four courts of appeal that if you are arrested for more serious offense categorically there exists a reasonable suspicion. our case by case rule applies with respect to minor offenders. that was -- >> how would this work with respect to individuals who have been arrested for serious offenses? say someone has been arrested for assault or a case of domestic violence. would that be enough to justify a search? >> i know you want me to answer the question. let me be clear. this is their rule. the respondents brought a minor offense line. they require -- >> you say you don't want to draw that line but apply it to

everybody. the fact that someone has the arrested for an offense is enough to bring reasonable suspicion? >> if the jail made that judgment accord would not overturn. that illustrates by contrast when someone is arrested for not paying a fine there is no justification whatsoever because the logic of their own policy is this is a person inclined to violence. >> what we're trying to do is protect the dignity of the detainee but it seems to me that you risk compromising individual dignity if you say we have reasonable suspicion as to you. you are just setting up and you are setting the detainee up for a classification that may be questioned at the time and seen as an affront based on a person's raise or what he or she said to officers coming and.

your rule imperils individual dignity in a way that the blanket rule does not. >> i think it is an important issue. they don't have a blanket rule. the respondents apply reasonable suspicion. they do strip everyone naked but if they are going to look for contraband in a person's now forehand they apply a reasonable suspicion standard. to your concern that we are inviting discrimination or appearance of discrimination remember that there will produce more of that problem than ours. it is not that they have to strip search everyone for contraband. they can make a choice. this court, face a -- >> i'm not sure it is their rule. it will be our rule. >> let me say i hope not. i hope your who has to be a reasonable suspicion standard which was applied almost everywhere in the wake of bell versus wolfish.

>> to strip naked is different from a strip search? what is permitted? there are various things. what is showering is the presence of officers? >> sharing in the presence of officers is not something that requires reasonable suspicion. courts have concluded if you are just generally in an area being monitored by officers that is not a fourth amendment surge -- search. >> they can be inspected without their clothes. >> there are two different scenario. everyone is standing around and jail security purposes, a common shower area and for security purposes this is different. you ask what is prohibited in the absence of reasonable suspicion. what is prohibited is standing two feet away from the person. >> i want to know what is permitted. >> what is not specific to

reasonable suspicion standards is anything other than a close inspection of the person at arm's will and. what the court of appeals recognized and what concerns this court is when you are standing so close to the person inspecting their genitals, looking directly at the most private parts of their body that is a direct intrusion. >> are you suggesting three different levels, stripping naked, it is okay to stand five feet away but not two? >> i don't think the courts had to confront five feet versus two feet. when they confronted is the acknowledged jail fireplaces that require security so if you are just observing a shower room that does not -- >> are you taking the position it is the purpose of the search?

>> it is the closeness of the. the question is not three or four feet. they'll occur the same way which is the officer stand in front of you, two feet away seems to be -- >> i am still unsure if it is okay to shower and have an officer watch you shower naked, what is the greater intrusion? >> two this is ten feet away is exactly -- >> that is a line that doesn't make sense to me. let's go to the next line which is that is one kind of search. the second is what people call a visual cavity search. whether you have the individual open or expose private parts. can you make an argument that that is different from a visual search? >> let me close my answer to the

question of five vs. ten feet and turned to the visual body cavity search. the court will recall this is a reprise of the argument in a stafford case where the schools argued that there is an observation of students in gym class and they shower together naked and the court said it is different when you are standing right there looking over the student. that is what implicates the fourth amendment right of privacy and the distinction did make sense. as to your question there is a material difference although we think both should be covered by our will but the visual body cavity inspection has occurred in the essex facility where you require someone to bend over and cough which is what the testimony is in this case. >> one, not the other. >> the second jail headed difference surge -- search protocol where he was to present his penis for inspection and the

respondents regard that as a more significant intrusion and they apply reasonable suspicion standards to that. >> what you propose is reasonable enough and some states could adopt that kind of protocol instead of what they have but what you are asserting is the fourth amendment prohibits them from adopting it and the obstacle i see is at the time the fourth amendment was adopted this was standard practice to strip search people who were admitted to prisons. how could it be deemed an unreasonable invasion of privacy when it was done all the time and no one thought was unconstitutional? >> we don't believe the premise is correct. if you read history differently i can persuade you that our understanding of the history is the closest they can come is two things. people were strip searched upon arrest which is not rule under

the fourth amendment and in certain sales at a time of the founding other inmates in the process of evolution with ritual cleansing would strip surge in new inmates. it had nothing to do with jail officials or intercepting contraband. >> that is less of an intrusion to the naked in front of a bunch of inmates rather than one jail official? >> it wasn't -- the uniform practice your question assumes. it is a different kettle of fish entirely. we don't believe that historical lesson obtained today that prisoners can strip search new arrestees as they come in. i agree with the basic premise of your question that it is our position can't be that i have a reasonable rule or i have to under the terms of bell versus wolfish establish that this is an exaggerated response for more

than necessary to accomplish their goals. >> what involved pretrial detainees? >> we disagree with that. we think there's no difference between the degree of intrusion here and in bell but there's another reason not just in the nature of the surge -- search but the inmates a voluntary choice -- >> do we know if pretrial detainees in bell were also inspected on entry into the facility? >> we do not. i tried everything i could check the record of that case and there was no record of an admission strips search at the time. >> there's a distinction between the simple trips surge and visual body cavity search. you say they apply reasonable

suspicion standard to the visual body cavity search so is it therefore off the table? >> it is not. we contend the fourth amendment prohibited the visual body cavity search at the essex facility. >> you say they had to have reasonable suspicion before they could do that. >> we say under they're written policy they should have but they didn't. the only evidence about a conclusion of reasonable suspicion is that the burlington county intake officers fill out a form saying there is no reasonable suspicion here and at 6 i don't believe contend there was reasonable suspicion to engage in a visual body cavity search. they denied. >> you see a distinction between what they do and a written policy. ..

>> every inmate who is arrested and is going to be held in custody to disrobe and take a shower and apply head case for the prevention of the spread of lice and is observed while this is taking place from some distance by a corrections officer, let's say 10 feet away. is that, does that require reasonable suspicion? is. >> it does not. the -- >> and so your only concern is searches that go further than that a. >> that's exactly right. the very close inspection of an individual's genitals which can

occur, absolutely, so long as there is some minimal level of suspicion that's created. i do want to return to justice kennedy's interests about -- >> could i just follow up on that? is there a dispute of act as to whether anything beyond that occurred in burlington county? >> there is a dispute about the so-called genital lift, whether mr. florence was required to lift his genitals or not. there is no dispute he was required to strip naked despite the officer having made a finding on page 390 that there was no reason to conduct a strip search. >> counsel, could you clarify two points for me? the first is, was he admitted into the general population at burlington? >> the record is not entirely clear what the record says is that for the first few days of his stay -- remember, he was inexplicably kept for six days. for the first few days he was kept in a cell with one other

inmate, and one time he had lunch with other people. in essex he was in general population. >> the prior charge against your client involved the use of a deadly weapon. assuming the prison knew this, wouldn't that revive the reasonable suspicion that you argue was missing this. >> no. because, because of the breadth of the phrase possession of a deadly weapon as this case illustrates, the record shows why the charge was not pursued by the state was that he was pulled over at a traffic stop, and he drove away. >> now you're feeding into your adversary's argument that what you're asking the police or the corrections facility to do on intake is to investigate in that fine detail? they can't even look at the rap sheet, the use of a dead ri weapon and say, ah, this guy could be dangerous? >> no, justice sotomayor, the rap sheet does not con tape that

charge. -- contain that charge. the rap sheet says that he had a single charge, he pleaded guilty, he got a term of probation. there is nothing about that the jail would have had any information suggesting that he had some charge involving a deadly weapon, and that's why they themselves certified there was no republican -- >> well, is the rap sheet always available immediately? i thought it was rather common, correct me if i'm wrong, that it would take maybe 24 hours, 48 hours for the wiretap for the wire services and be the internet to report that he was wanted for questioning for some very, very serious crime in some other state. i think in my practice at least county jail were much more dangerous than penitentiaries because you don't know who these people are. you arrest them for traffic, and they may be some serial killer, you don't know. >> sure. first, that is not the view of

the jails in this case. they did not find any concern this their own policies, near does the marshal service, i.c.e. with this prospect of some prior offense. as to what the rule is and how common it is and whether this works in progress, the jail here did look him up this new jersey criminal justice system. that's in the record. they're required by new jersey law to do that. every single one of these jails has computer access to the nj, cjis and also the ncic. they just type in his identifying information. they were able to pull him up without any difficulty, and they've not complained they department have enough information about him. they filled out a form saying there is no reasonable suspicion here. and, remember, our rule only operateses in a system, justice kennedy, in which the jail buzz have enough -- does have enough information. our point is this. if jail has the facts as it did here to definitively determine there is no --

[inaudible] then it is an extraordinary decision to strip him naked when they have no reason to do so. >> counsel, my understanding of the statistics, and correct me if i'm wrong s they get about 70 new people going through this process a day. is there anything in the record about how much additional time it would require to look at each one, to look at their record, to determine which category they should fall into, strip search or not, as opposed to having a blanket rule many? is. >> sure. there is, because they do this already: it is not an administrative problem. they apply our rule today. remember, mr. chief justice, when he arrived at the burlington county jail, they did an assessment. the jails in this case did pull up his prior criminal history, and they have no problem doing that. they apply our standard today, it is not a difficult one. >> mr. goldstein, you've acknowledged that we have held that when you have visitor, you

may be strip searched after the visit and the same kind of close examination that you object to here. now, your explanation why that is okay is that that is voluntary. >> i have two explanations. >> that you don't have to have visitor. can you really condition your, your having visitor on your waiver of your fourth amendment rights? >> yes. block establishes that you have no right whatsoever to have visitor, so, of course, you can say i voluntarily rering wish my fourth amendment right in exchange for this privilege. but i have a second -- >> are you sure about that? you can condition certain, certain privileges upon a waiver of constitutional privileges? >> yes. i believe that that's -- i think that's a fair statement to have law. i do have a second point though. and that is that the principle reason underlying the holding

that those searches were reasonable is that it was essential to deter smuggling. and that deterse rationale has much more of an attenuated relationship to this case. remember that the inmate many that case was having a planned meeting, and the representation of the government is our problem is if you plan to have somebody come visit you, you can plan for them to try and sneak something to you. this court -- >> many goldstein there were, of course, guards there who were watching the visits, and as i understand that case, there was no empirical evidence that smuggling came about as a result of these visits. >> well, can i just read to you what the court said about that? this is from page 559 of the courts opinion be. there has been only one instance where an inmate was -- maybe more a testament to the effectiveness of the search technique as a deterrent than to any lack of interest on the party to import such yams when

the -- items when the opportunity arises. our point is, remember, mr. florence showed the paperwork that he was not wanted for arrests, and that's going to be true in all kinds of traffic stops. >> what you're doing. i mean, i thought you were saying -- [inaudible] so i imagine a case where a person's going to be arrested, put into the general prison population. there's a warrant out against him for second-degree murder, and the policeman's stopping him for a traffic offense, arrests him because he knows he's wanted on a warrant in another place. and the jail has a policy that says when you come in here because of second-degree murder, we strip search you, okay? can they do that under your rule or not, that's all they know? you are not saying it always has to be reasonable suspicion. >> we think that is reasonable suspicion. >> all right. well, that isn't helping me. what helps me is to know what

the category of things is that the jail, in your opinion, is going to have to look into the characteristics of this individual person. and when i look at the aba, they talk about minor arrests. and when i look at some of the cases, there's a long list like violence, drugs and so forth where you don't have to, where you can just use general -- the fact that he was arrested for the thing. but there are other ones, minor ones, where you do. so what's your rule on that? >> our rule that we would accept is that with respect to minor offenders, that's when -- >> with okay. then the next question is who is a minor offender, and how to you administrator that rule? >> okay. i think that's a great question for them because that's their rule. they have a rule that says for minor offenders -- >> if you're trying to state the constitutional rule and you teak talking about what is their rule, and we're trying to find

out what is the limit of the rule, and i think you've already qualified what you said opening. opening you said reasonable suspicion is the rule for everyone. the felon as well as the minor offenders. mow you seem to be saying, well, this case involves only miles per hour to fedders. -- minor offenders. so let's limit it to that. that's what i thought you were saying now. >> yes, that's right. because this case only involves miles per hour offenders, we have articulated a rule -- >> that's what, unfortunately, i'm asking you and not them, and it's the same question. >> sure. >> how do you want us to write this so that jail personnel all over the country have to be able to follow it and know exactly what they're supposed to do? >> for three decades the rule that was articulated by the federal courts and applied without difficulty is up with that says -- is one that says for minor offenders. it was basically done at a felony versus misdemeanor line.

if you are suspected of a more serious defense, because we think you might be engaged in more criminality, then you don't have to have any -- >> we can understand that for cavity searches, but why for the search to see if persons has any fleas or cooties or, you know, any other communicable decide before he's put into the general population? are felons more likely to have those than nonfelons? >> no, they're not. >> so that makes no sense for that aspect of the sense which is we want to mange sure we have a clean -- make sure we have a clean prison. >> that is not correct. what the testimony in this case established is the jail guards allow any sort of medical rationale to be conducted by medical personnel, not by the guards themselves. all these inmates are examined by a medical person, and they are responsible for -- >> that's where the fourth

amendment invasion of privacy line is to be drawn, if you're examined close up by someone who has a medical degree it's okay, and on the other hand, if it's someone who does not have a medical degree, it's not okay? >> that is -- >> that can't be the line as to whether your privacy is being invaded. >> it can be the line, and it is the line that's been accepted for -- >> you would have to keep the person in custody, say, for 24, 48 hours until the medical personnel -- do they have 24-hour medical personnel for intakes that are due in the morning? >> yes, the testimony is -- >> you're telling us that every county jail in the united states has medical personnel on duty 24 hours a day ready to do a search? >> no, i apologize, justice kennedy. i'm telling you what's in the record in this case, and that is finish. >> you said before that two feet is too close but five feet is okay.

are you sticking with that? >> justice breyer, to examine a person's genitals whether it's at two feet or four feet, i don't think -- if i could make one point and reserve the remainder of my time. >> may i just add to your medical personnel, children at school get inspected for his lice. prisoners for body lice. you don't need a doctor to do that. >> what happens is medical professionals are the people who are assigned that responsibility. that's the testimony in this case. the only last point that i wanted to make -- >> but that's not constitutionally required. >> i agree. >> so that's another thing that you don't need to, they can inspect for body lice. and that's okay. >> if that's what they're doing, i think that that is okay. the courts have said that that is not itself, because of the prospect of handling that problem with shampoo which is

what these jails do, that that's not a sufficient justification to require the person to strip naked. the only other point that i did want to make is that this is the rule not just at burlington and essex, but also with the u.s. marshal service which has the intake of 220,000 inmates every year and also the bureau of immigration, customs enforcement which -- >> the government tells us that that's true only if they don't put the arrestee in the general population. >> that's not correct. that is only the policy of the u.s. bureau of prisons which has an ip take of -- an intake of only a few hundred a year. for the marshal service and i.c.e., we do not have that separate housing rule. >> we'll give you rebuttal time but maybe just to be clear, you don't -- do you or do you not have an objection to the superseding eccf be policy? >> we, if the -- we do. because they still have to stand

fake -- naked directly in front of the correctional officer under the superseding policy. what the superseding policy is that they will not search the perp for contraband which is their supposed interest here, for contraband in the absence of reasonable suspicion. both jails at the time of this search and also now will still require the person to strip naked, supposedly for contra band, even though their own policy says we won't search for, we won't engage in the depth of search that's required. we won't look at the anus, we won't look in the person's mouth in the absence of reasonable suspicion. >> that's the current policy. >> that's the current policy. >> and you have no problem with -- >> we do -- >> you have no problem with the reasonable suspicion aspect of the body cavity search. >> that's correct. >> okay. and with respect to the simple strip search -- >> yes. >> -- your only objection is that the guard is too close to the inmate. >> that's right. >> okay.

thank you. mr. phillips? >> thank you, mr. chief justice, and may it please the court, i actually appreciate the clarification your questions brought to this case because i think there's a bit of confusion i'd like to clear up, although my colleague's movement left me a little bit perplexed as to exactly the nature of their claims. the first question it seems to me the court should focus on is what policy is at issue here. and, obviously, since the class certification deals with one set of issues and the plaintiff's claims deal with another set of issues, i think you have to be careful. i think you have to focus op the policies that existed in 2005. that was the basis on which he was, in fact, searched under the circumstances. and the policy in burlington was primarily aimed, frankly, at health and tattoos. and the policy at essex was aimed primarily at contraband and then secondarily atta toos

and health. and the policy at burlington was largely a you come into prison, you give up your clothes, they look through your clothes, you take a shower, they examine you fairly cursorily and then give you prison garb and move along the way. >> i'm sorry, the shower and look at you cursorily s that before before or during places a lot of significance on how close the examination is. so under that policy, how close was the examines? >> it almost certainly would have been about an arm's length. the problem is if you're exchanging clothes with somebody, it's sort of hard to be harder than arm's length and actually get the clothes into his hand. >> he could reach out. >> okay, two arms' length. [laughter] >> that's not right. you could take the clothes off, put them in a bin, and the person examines the bin.

>> right. and that's actually the way they do it in essex. e sex does have -- burlington is, basically a visual observation, and the district court said that's unconstitutional. that just observing at all is unconstitutional. to some extempt, it seems to me my friend here has given up that part of the district court's decision which, clearly, the court of appeals ought to affirm on that ground alone. >> for more than two feet or less than two feet. >> all right. although that was not the district court's theory. the district court -- >> what happened? do we know? >> i mean -- >> in two feet or not within two feet? >> well, it depends on whose version -- >> [inaudible] >> you have to remember, the district court granted summary judgment to the plaintiff, so you'd have to give us the benefit of the interpretation which is it was more than two

feet, but the of appeals reversed without regard to that. it doesn't matter because you can engage in a much more intrusive, true body cavity search which, frankly, is even more intrusive than essex county in this case. because it wasn't asked to bend oh and have -- over and have a body cavity anal search. what he was asked to do was squat and cough because ordinarily that'll cause the contraband to fall out, and you can catch it under those circumstances. so that's sort of the finish. >> mr. phillips, you think there's no reasonable suspicion even for that more intrusive body cavity search, is that right. >> >> that's correct. that's the rule of law, ma'am. >> and does it matter to you whether the person is being introduced into the general prison population, or would you also say that if person is not being introduced into the general prison population? do you still think there's no reasonable suspicion

requirement? >> i would say from my perspective i think even if they with respect going to be admitted into the general prison population because the risks remain too substantial, but the truth is i don't have to defend that argument because both of these jails admit their inmates into the general population 99.9% of the time. that's not a line we draw. >> would you say that regardless of the offense for which the person is arrested? there have been some stories in the news recently about cities that have taken to arresting people for traffic citations. so suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras, let's say. that person can be summited to -- subjected to the searches you're describing? >> yes, justice alito. i think the basic principle we're asking for is that the defense to the jails -- deference to the jails and to the administrators of the jails

requires that this court respect their judgment that you can't make a distinction based on that specific individual. that whether somebody is a minor offender or a major offender, one, is never all that clear in the first place and, two, suspect a basis on which to distinguish the risks that it poses -- >> the aba is minor offenses, not drugs, not violence. there are and there you have to have republican suspicionment now -- reasonable suspicion. now, i've read through the briefs, and i can't find a lot of contrabanders that were caught in that category. in fact, my logbook thinks it's one out of 64,000 or less. so what is the justification for a rule to avoid reasonable us in addition that category -- us in addition that category? if you look at the expert testimony that was before the court and the district court in

this case, both the expert testimony of the plaintiff and the defendant, this is at 348a of the joint appendix, it says a greater presence of contraband amongst those individuals that have minor offenses. that's their expert's characterization, that minor offenders bring in more contraband than major offenders. >> the conclusion, and we have a lot of practical experience because timpt states have different rules, and san francisco came in with, i think, the toughest on your side, for your side. i just say looking through that it's very hard to find somebody who really was in this minor offender category who really was found to have contraband. so what should i look at to show that my initial reaction from a quick reading is wrong? >> well, i mean -- [inaudible conversations] where this court said that the fact there is not a lot of contraband being found may be a

testament to the effectiveness of the deterence. >> so why do we change the policy? in bell we found even though there was searches, contraband still got in. so virtually every circuit in practice, the federal system, have been following this reasonable suspicion for miles per hour crimes -- minor crimes and they've been fairly successful. so why do we change the constitutional rule to let them do more? >> well, i think -- >> [inaudible] >> well, i think, first of all, anybody who thinks the problems of contraband are less serious today than they were in 1978 is ignoring reality. >> i understand contraband is serious, but most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits. the great cause today is that from corrupt correction officials.

>> well, i mean, we can debate that, but justice sotomayor, it seems to me that the fundamental preg that ought to undergird the entirety of the court's analysis comes out of turner v. safly. >> just in terms of your rule, i think your rule is you're not entitled constitutionally to any right of privacy in prison. >> no. >> if that's the case, are you saying that if prisons decide on a manual search, every prisoner who comes in correction officers can manually check their cavities? >> no, justice sotomayor. >> so there is some privacy -- >> i can be clear about this. it seems to me that hudson v. palmer and the history of the fourth amendment clearly suggests that there is no reasonable expectation of privacy of being viewed naked in a prison. and, therefore, the ordinary burlington approach of having somebody take a shower and

looking at him or her naked for tattoos and health and the incidental contraband clearly constitutional, clearly doesn't even raise a fourth amendment issue. >> when you get beyond that point and start to begin what essex does which is not a true anal cavity search but simply an anal-focused and genital-focused search, i think that is subject to turner v. safly and -- >> so we get back to justice alito's question, isn't one of the factors that we look at under the fourth amendment reasonableness, and should we be thinking about the fact that many of these people who are now being arrested are being put into general populations or into jails sometimes not just overnight, but for longer period of times like this gentleman, for six day before he sees a magistrate. um, should we be considering a

rule that, basically, says your right to64

. >> nevertheless, represent -- [inaudible] >> but what are we doing with the presumption of innocence? that's also a constitutional right, and so shouldn't the degree to which a search is permitted be conditioned in some way on whether or not this person has been presented to a magistrate? >> if you ask me, the way i would analyze it, if you want to adopt a different set of standards about who ought to be arrested and who ought to be taken to jail, that's fine. i understand that. >> no -- >> but i think once you're talking about actually bringing someone into the jail to be admitted into the general population in what is without question one of the most dangerous, most risky environments, in that context i would hope this court rather than asking individual jailers

to make decisions on basis -- whether they clearly will not have the kind of information you're asking them to make and where they make a judgment wrong in either direction, all it means is litigation. >> i thought your friend says that is exactly what you do with respect to the body cavity search under the new policy. >> that's what we do with a true anal body californiaty search. -- cavity search. we changed the policy, to be sure. >> right. >> we changed the policy because of litigation concerns. >> now, as i understand it, with respect to -- >> [inaudible] >> with respect to visual body cavity searches, you require a particular individual reason, right? >> yes. >> okay. and you don't require that with respect to simple strip search. >> right. >> okay. so you agree with your friend that the only thing at issue here is how close the forward is going to be -- the guard is

going to be to the individual who you have no reasonable suspicion to think is different than anybody else during a simple strip search. >> well -- >> he says two feet is too close, five feet or whatever is okay. you want to go to two feet. you don't want to have to stand back to six feet. that's all the case comes down to? >> i don't -- well, i mean, you can characterize it that way. i think the better way to think about it is what essex wants, what essex policy permitted it today is to examine -- >> i'm not interested in what essex policy permitted it to do in the past. i'm looking at the new policy, all right? under the new policy you have reasonable articulable suspicion for everything except simple strip search and observation. >> well, you see, that's the problem. the language there is different because the truth is that the line that the new policy draws is between a true what i think

bell v. wolffish was describing where you ask the inmate to bend over and expose his or her anus for a cavity search. on that score, we don't do that. but we do, in fact -- >> i'm sorry, could i finish and find out what you do? you said we don't do that, we do -- what? >> what we do is ask the individual to lift his genitals and to squat and cough. >> okay. so you do more than the simple strip search. >> right. slightly more than the simple -- but i don't think that's the line to draw anyway. >> there is still an issue in the case beyond the ordinary visual inspection, and that is this. even though you have changed your policy now -- >> right, we still are. >> -- the question remains whether that change in policy was constitutionally required so that when, when you treated the plaintiff in a different fashion under the old policy, that was a

violation of the constitution. doesn't, doesn't that question remain in the case? >> that question clearly remains -- >> okay. so we have to consider both, the pure visual and also the inspection for contraband. >> right. and all i'm, all -- the only point i've been trying to make here is if you look at the way the district analyzed the case, the district court split it up, and it's a difference between -- >> there's a record or common experience justify an argument that if you have the person who's stopped just for a traffic ticket, but that person is going to be in custody for five or six days, that person might well prefer an institution where everyone has been searched before he or she is put into the population with -- >> justice kennedy, there actually is testimony on the record from the warden saying that in order to insure even's even's -- everybody's safety we are better off with a blanket

policy that says we're going to engage in some form of a search, but it is all designed to accomplish the same thing. it's not just designed to inshire against contraband, and that is designed to insure against there suspect somebody like mr. florence who's going to end up being poked -- >> is there any evidence, seven or eight states anyway, that have some variation of the reasonable suspicion like what they want roughly, is there any rule at all in those seven or eight states there is more contraband being smuggled in? >> there is testimony in the record from their expert who said in kentucky there is today the single biggest problem in kentucky prisons and the biggest cause of death is drug overdose which suggests that there's a serious contraband issue in kentucky. kentucky is inside one of the circuits that's had a reasonable suspicion requirement as a constitutional matter forever. so i would say, yes, there is some evidence from which you could infer that it's worse now than it was.

but i would also ask the court to rely on its common sense and what it circumstantially took judicial note of in rutherford v. black which is this is a serious problem, and it is no less a serious problem today than it was more than 30 years ago -- >> are there any constitutional limits n your view? you say you didn't attempt the kind of search that was done in bell v. wolffish. is there any constitutional impediment to your doing so? >> i don't believe -- my position would be, no, there isn't a constitutional impediment, that the balance would tip in favor of the institution under those circumstance r -- circumstances. obviously, there is a limit between a manual physical body cavity search, and that, it seems to me, yes, that would be a very different balance of the equation. and i suspect i'd be very hard pressed to convince five members of this court that -- >> you want us to write an

opinion that applies only to squatting squatting and coughing, is that it? >> well, you may want to write it slightly differently. [laughter] >> yeah. [laughter] >> no, but what i would really like is an opinion that recognizes that deference to the prison and to their judgment is what's appropriate under these circumstances, and that extends all the way to the bell v. wolffish line. the only difference being that i would like for the court to analyze it under turner v. saffley under which the analysis is, is there a logical nexus between the rule the prisons have and preventing a problem? and there the answer is yes. >> you are saying they can do the full -- as long as the constitution is concerned, all of these searches are permissible? >> clearly, all of our searches are permissible. >> and bell v -- >> yeah, exactly, i think that's

the holding of bell v. wolffish. it was not tied in its opinion itself -- >> but they did address that there was a visitor who could, who could give the inmate contraband. bell v. wolffish doesn't, and i asked mr. goldstein whether we know where the pretrial detainees in new york were searched that way on entry, and he said there's nothing that shows one way or the other. >> right. i think that's correct. we don't know. and, of course, part of the problem in that is that facility had only been opened for four months anyway, so it was really going to be difficult if you were going to adopt the policy that they adopted in if bell to insist on some sort of empirical proof. >> the one significant difference between bell and this case is that in bell there was a real opportunity for people to plan, to conspire together to bring in contraband. here you're talking about somebody who's arrested on the

spot, there's no opportunity for planning, for conspiracy with respect to contraband, is there? >> no. but the policy itself, may i answer the question, the policy is aimed at all people, not just at mr. florence. and if you aim it at all people, there are people who self-report who've, obviously, got an opportunity to bring in contraband, and there are a lot of people who get arrested who have drugs on them and will likely stick it in their pocket or put it somewhere else. thank you, your honor. >> thank you, counsel. [background sounds] ms. be saharsky? >> i want to start with justice cay can began's -- kagan's questions. it is true that contact's visits in bell are different than a person coming in that there

might be a greater opportunity for planning. but as one of the justices pointed out, this was less of an opportunity to get contraband. the inmate was wearing a one-piece zip-up jumper, and he seemed watched the entire time. the contraband situation in this case, at intake, the person does have an opportunity even if they are not self-reporting knowing that they're going to be arrested. protesters, for example, who decide deliberately to get arrested, they might be stopped by the police, they might have a gum or contraband in their car and think, hey, i'm going to put that on my perp, i just need to get it somewhere and then potentially they have the contraband with them. also the process of going from the arrest, point of arrest to the general jail population is not a quick one. the person typically goes, for example, to a metropolitan police department. that's what happens here. and the person would mix potentially there in a holding cell with other fenders. if this court, for example,

adopted a rule saying that minor offenders would not be search inside a way other fenders would, i have no doubt some of those o fedders all on the bus together who would give the stuff to the minor -- >> and how does that, that's not the federal rule. and by the way, the brief was really confusing. when i read page 1, page 1 tells me that the policy requires all incoming pretrial detainees to be subject to visual body cavity inspection. and then it suspect until page 30 -- it isn't until page 30 that i learn this is an exception for the very category of arrestee that we're talking about here. that they are not subject to body cavity inspections unless there's reasonable suspicion that they're concealing contraband. that the misdemeanor or civil contempt offender is not

subject. >> i'm sorry if that was confusing. the bureau of prisons policy is a person will not be put in the general population being allowed to mix with other fenders unless he or she has understood gone the strip search. >> yes, but i wanted to know how people in this category are treated in the federal system. and you've -- >> the people -- >> -- reversed it. they, those people are not subject to this visual body cavity search. >> those people when they go into the jail would be asked whether they're willing to concept to this type of -- consent to this type of search. if they don't consent and there's not reasonable suspicion, then they are not placed in the general jail population, they're kept separate from the other fenders. so it is the case, the rule that the third circuit identified is anyone that's going to go into the general population and mix with everyone else has to be strip searched. that is the federal bureau of prisoners --

>> i'm sorry, i'm sure i missed something. you say when they go in, they're asked will you consent into a more intensive body cavity search, or if you don't, you don't have to be searched and put you someplace else. who consents to that? [laughter] >> well, the general population has certain facility, you know, computer facilities and others you don't get when you're in a cell by yourself. as a practical matter, this arises very infrequently this federal system. and the question before the court at this point really is you have before you a blanket policy saying we need to strip search everyone, and is that something something that's unreasonable or irrational -- >> i understand most of the general proposition that your side is advancing. um, but i have to say i was somewhat surprised at the evidence, of the amount of contraband that was discovered, the amount of weapons that have discovered in the literature and in the citations was somewhat

skimpy. i thought there would be a stronger showing than i found in the brief. >> well, there are not empirical studies of this type of information. typically, it arises when there are incidents at a facility and incident reports are written up. they're not published regularly. there's not some type of laboratory study you can do. sometimes it makes the news, those are some of the things we've reported. and i would hate for the court to think that there is not evidence of people who have committed minor offenses in the record bring very serious things into jails. i'd point you to footnote 15 which talks about people being arrested for traffic offenses and smuggling crack pipes in body calfties, i'd point the court to the record in the san francisco case -- >> the issue has to be, certainly, some misdemeanor, some people charged with misdemeanor crimes will try to smuggle things in. the issue is how many of them

would not have been found on a reasonable suspicion standard. i think, um, justice breyer said in a san francisco study it appears only one. >> i think that's a very hazardous thing for courts to do with 20/20 hindsight, you know? the court could look back -- >> well, we don't have 20/20. we have how many years? 15 years since bell where prison have been applying the reasonable suspicion standard? and the most you can muster under that standard is one example of a case where someone has entered? at some point empirical evidence has to mean something in terms of us judging the question of reasonableness. >> i agree with you. but what i'm saying is that the individuals who are doing the searches at issue have very limit information about people. -- limited information about people. they have had the most contact with the outside world, you have the least amount of information about them. >> well, i know that when --

[inaudible] you've had to base your judgments on your own personal experiences. when i was a prosecutor, it took sometimes days to get a rap sheet. i understand that's no longer the case today, that they're virtually almost always accessible by computers today. >> that may be true, but it's not the information that the people who do intake and are doing the searches have. they do not have that information at their finger tips in the federal system. they have name, date of birth and the offense the person was charged with. they don't have anything else. and the question before the court, if i may, is whether there is reason for a blanket rule that this court should defer to, and i would say there are several. first of all, you cannot say there are not some minor offenders that don't pose a contraband risk. second, you have individuals making quick determinations. they have large numbers of people to get through into the general prison population. they have very little time, and if they guess wrong, those mistakes can be deadly.

>> supposedly is accept the petitioner's confession that it is permissible to require everybody who is arrested to disrobe and shower under the observation of a corrections officer from a certain distance. now the question would become how many people who do that will still be able to smuggle in contraband? >> well, there would be contraband found that would be in body cavities, and we have documented in this record and other records that there are folks who do that, and that contraband is not found until -- >> that's my problem. i overstated the strength of your evidence. i was just trying to thaw it out. or i understated it. san francisco's point is really that 30 or 60% or some very high percentage of people who come in for minor crimes are high on drugs or have been -- and there's just that footnote, really, which is a few examples, definitely they're there, in this category.

so would it be helpful if you included in the excluded part people who are high on drugs? you see? so we give you the high on drugs people. it's the drug offense, and those who are high on drugs and those, i mean s there a way of drawing this rule that we think we can catch most of the people -- >> i think the fundamental question for the court is who's supposed to be drawing the line, and you've said in case after case after case -- >> but it is the simplest thing for any prison official to say do it for everybody. >> that's -- >> so the fact they do it for everybody and don't try to make some exclusion for traffic violaters or something might be consistent with little or no evidence and might be consistent with some. that's why i keep looking. >> there are many good reasons, though, to have a policy to do it for everyone. it is easy to administer when you have lot of people, it is done for the protection -- >> if there's so much sense to that policy, why isn't it the federal policy?

before you said because there aren't that many offenders. if there were more, then would this, would the federal policy change so that even people who are in on a contempt charge or minor crime? >> yes. the federal government thinks that that blanket policy is a good one. it made one modification to its policy in 2003 when the weight of the circuits was against it. but, again, this is a policy that is done for everyone's protection, a point that justice kennedy made earlier -- >> i'm sorry, i didn't want understand, you think the feds think it's a good policy to inspect everyone? is. >> yes. to expect everyone who would be put in the general jail population. that is the third circuit's holding, and that's what we're defending because when you have a rule that treats everyone the same, you don't have any security gaps. >> thank you, counsel. mr. goldstein, you can take four minutes. >> thank you, sir. i have three points to make. the first is that my friend from

the united states says defer to the experts, but the point that the united states consistently omits is that there are 600,000 offenders that go into the federal system every year. i don't understand the claim that this only involves 1% of federal offenders. the marshal service and i'm sorry c.e. admit 600,000 offenders a year. they are not kept in separate housing. these are cited in our brief. they're subject to a reasonable suspicion standard when they're admitted to jail. the second point about numbers, justice breyer, there is a significant empirical study, and that is the county of orange case, the district judge there did an unbelievably detailed job going through the record of 26,000 admissions into the system and was unable to identify only a single instance where contraband would have gotten in under a reasonable suspicion standard. there's also evidence in this case, and the ed -- evidence to my surprise my friends keep pointing to, page 07a to 71a of

the joint appendix, and it tells you two really relevant things. every year they admit 25,175 people into this jail. and they only found 14 instances of contraband, and they don't even make the claim that those 14 instances out of 25,000 would not have been found under a reasonable suspicion standard. so you have evidence in this record about this particular case. third, a couple of points have been made about whether, justice breyer, you asked whether someone who's high on drugs. the uniform rule, and this is not just the aba, but the expert standard of the american correctional association, what they say is almost anything will do. what will not amount to reasonable suspicion is when you have a minor offender, and we do have -- there's 700,000 people in jail in the united states every year for misdemeanor offenses. this is a lot of people who are having a very significant intrusion on privacy. and the expert standard, the rule that was applied under bell

v. wolffish is when you have people who come in on a minor offend, they're not high on drugs, there was no opportunity to hide a weapon. i'm not sure where they think the gun is going to be hidden that's not going to show up in the very close manual patdown they do of every one of these people -- >> i don't think you're really arguing for an individualized reasonable suspicion standard. i think you're arguing for a rule that draws distinctions based on categories that correspond only, perhaps, very roughly to reasonable suspicion. >> well, first, there are real categories that are overinclusive in favor of the jails. like, if it's a serious offense or they have any drug history. and then on top of that if there's any individualized basis that the jails can articulate, that will do as well. we are not saying people will be excluded from being searches, we're saying there are entire categories that will be automatically searchable. don't throw the baby out with

the bath water. when somebody is pulled over like mr. florence, and it's laugh out loud funny to think these smuggling -- he's smuggling something into this jail. i'm going to look at sure genitals as opposed to saying we're going to oversee the showers, there is no ed when it comes to that group of people, and there are a lot of them that they represent anything like a material threat that's smuggling, and this is a very significant intrusion on individual privacy and dignity. >> thank you. >> thank you, counsel. the case is submitted. >> up next, a discussion on the future of the u.s. postal service. and the senate gavels in at 10 a.m. eastern. senate majority leader harry reid will bring to the floor a package of spending bills for agriculture, commerce, justice, transportation and housing. live senate coverage here on c-span2. >> today a hearing on biological weapons threats to the ten years after the 9/11 attacks.

the undersecretary of homeland security for science and technology will testify. live coverage from the senate homeland security committee begins at 10 a.m. eastern on c c-span 3. republicans and some democrats in congress remain at odds over the obama administration's policies for detaining and capturing terror suspects. later in the day the defense be department general counsel will discuss the administration's position at a heritage foundation forum. live coverage at 12:30 eastern also on c-span3. now, a member of the board of governors of the u.s. postal service warns that major reform is needed for the survival of the organization. james miller spoke at the hudson institute about the future of the postal service. last month a government report projected a $9 billion loss for the postal service's 2010-2011 fiscal year.

this is about an hour. [inaudible conversations] >> well, shall we begin? let's begin. welcome to this session. the center for the economics of the internet of the hudson institute is very pleased that you could join us today, and we're particularly pleased to have with us the c-span audience. a couple of minor housekeeping things. please, continue to enjoy your lunch. i do want to mention we have some upcoming events. we will have a panel of economists discussing the at&t/t-mobile merger with different perspectives in early november. in december, professor greg rosston at stanford university will come to speak about universal service. i have a couple of other speakers we're working on getting exact dates for them.

but today is the main event, and we are extremely pleased to have with us jim miller who has a very distinguished career in washington holding a variety of positions. and i think today he has one of his most challenging positions on the board of governors of the u.s. postal service. jim miller has previously served as chairman of the federal trade commission, as direct every of the office of -- director of the office of management and budget. he has served on countless boards. but i do think one of his most challenging positions has to be the u.s. postal service. and i also want to particularly emphasize that this is the center for the economics of the internet, and we're very pleased that jim miller is a ph.d.

economist, has written more than 100 scholarly publications, nine books. and if anyone is in a position to understand the economics of the postal service, it is jim miller. so with that, please, join me in welcoming jim miller today. [applause] >> thank you. thank you very much. thank you, commissioner. it's a great pleasure to be here at the hudson institute where i count among the leading lights two of my former colleagues from the office of management and budget, michael horowitz, john wiker. and i have other friends here. thank you for inviting me, it's quite an honor. today i'll summarize the dilemma facing the u.s. postal service and then take questions. my basic message or my message in a nutshell is that the old business model is broken and must be replaced. and then i'll tell you why. but first a disclaimer.

what i say today are my own personal views. they don't necessarily reflect the views of the management of the postal service or of the postal service's board of governors. um, as you may know, there thers an old post office, the park. and it was the outgrowth of an authorization contained in the u.s. constitution. it sometimes says that the constitution mandates a postal service. it does not. it authorizes a postal service. but clearly from the very beginning there was perceived to be a nexus between the federal government and a postal service. benjamin franklin was the very first postmaster general established under the old continental congress. in 1792 congress passed, the

president signed a bill referred to as the private express statutes which outlaws competition with the postal service. postal service then was granted a monopoly on the delivery of letter mail back in 1792. and as a result of that, the justice department enforced that law and put out of business incipient competitors including the old pony express. it didn't last very long because it was put out of business by the federal government. the postal service was, um, an organization which responded to a lot of congressional pressures to hire this person or that person. the postmaster general was typically the president's most

important political adviser. it was patronage carried to a national level, and partly for that reason it was a pretty inefficient operation. of -- and, in fact, something that most people don't know is that through up until the late '60s the postal service received outright appropriation subsidies for it services. in 1970 after a bipartisan commission made a report, the postal service by law was converted from the old post office department to the postal service, a government-sponsored enterprise that was among other things meant to be run like a business, make a profit, a small profit. weren't supposed to make big profits, supposed to spread the goodies around. but it was supposed to operate like a business.

um, until recently, that is the last decade or so, the operating model of the postal service was very simple. it was a statutory monopoly, and the postal service was to take the profits from the monopoly portion of it service -- that is the delivery of letter mail -- and subsidize everything else. so you had a lot of services being delivered at below cost, any kind of attribution of some fully-allocated costs. let me just comment. historically, it's very difficult to get your arms around cost for the postal service because among other reasons you've got to talk about classes of mail delivered everywhere in the country. you've got to, you've got enormous fixed obligations. so typically attributable costs

or what economists might call marginal cs