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On The View From Egypt, Part Four, Or, Gaza, We Have A Problem December 31, 2008

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What had been a truce between Israel and the Palestinians of the Gaza Strip seems to have abruptly come to a halt; with the Israelis blaming Hamas and Hamas blaming Israeli oppression of the displaced Palestinians for the simmering hostilities that are now boiling over into military-scale violence.

Before the recent holidays and an immoderate amount of snow buried me in things that could not be done on the computer we had been having a conversation about the strategic importance of our relationship with Egypt. Within that series of discussions we explored the influence of the political opposition, and we considered the fragility of President Mubarak’s hold on power.

We also noted the immediate proximity of Egypt to the Gaza Strip.

Today we’re going to tie all of that together—and the end result of all that tying is that we better keep a close eye on Egypt, because trouble in Gaza has spilled over into trouble in Cairo….and that’s one more Middle Eastern problem we don’t need.

If you’re looking for more details as to why Egyptian politics have been a one-party affair since the Republic’s founding, information about the opposition, or a consideration of the country’s strategic importance, have a look at Parts One, Two, or Three of this series.

So that we might put some of the background in place, here are some of the salient facts surrounding the events of the past few days:

A ceasefire that had existed between Hamas and the Israeli Government has expired. That ceasefire, however, had been a bit of an imperfect exercise.

Some attacks from Gaza into Israel have been self-attributed by Hamas (actions that they have described as responses to Israeli aggressions); and there are suggestions that forces loyal to the rival Fatah movement have also been involved in attacks. The Israeli Foreign Ministry reported 2502 rockets or mortars were fired from Gaza in the first 11 months of 2008, resulting in 17 Israeli deaths. (The ceasefire began in June of 2008.)

Over the four days since the ceasefire’s expiration at least 1100 Palestinians have been killed or wounded by Israeli airstrikes, with some airstrikes targeting tunnels that connect the Gaza Strip to Egypt.

The tunnels are important because they are used to import supplies to the region when normal commercial crossings are restricted or closed by the Israeli Defense Forces. (Truck crossings into Gaza have been reduced from 475 daily before Hamas took control of the region to 123 daily in October 2008 to none for the past eight days.)

The IDF reports that the tunnels are used to import weapons as well.

It is also reported that IDF troops are massing near the Gaza border. It is possible that an entry into Gaza by the IDF is imminent, but as of this writing that has not yet occurred…or it may have already occurred, as reported by the sometimes reliable Debka.com.

And it’s the tunnels that connect this story to Egypt.

As you may recall from our earlier conversations, there are many Egyptians who support the Muslim Brotherhood’s Islamist views, and there are also many Egyptians, unassociated with Islamism, who feel a sense of solidarity with Gazans and their struggles with Israel. Add to that the fact that President Mubarak’s secular but increasingly unpopular Government has been cooperative with Israel as they have worked to isolate Gaza and you have the makings of some serious trouble in the Egyptian street.

And as of today, the trouble seems to have started.

In a country with a Government that attempts to deter undesired street demonstrations with an extremely hostile internal security response, El Badeel of Cairo reports as many as 200.000 of the undeterred may have taken to the streets in demonstrations against the Government in cities such as Cairo, Alexandria, Tanta, and even down the Nile in the farm country of Minya and Asyut.

The Egyptian Foreign Minister, Ahmed Abul-Gheit, and the leader of Hezbollah, Hassan Nasrallah, are trading words—and Egyptian police and military border guard units are firing on Palestinians who attempt to enter Egypt through holes blown in the wall (by the bombing raids…) that would normally prevent such entries.

Now here is where it gets tricky.

Hamas, the ruling party in Gaza, is essentially descended from the Egyptian Muslim Brotherhood—and the last thing Mr. Mubarak wants is hundreds of thousands of Hamas supporters taking up permanent residence in his country, especially if they end up forming fairly insular communities out in the Sinai Desert where the Egyptian internal security apparatus is at it’s weakest.

On the other hand, being perceived as supporting Israel is fraught with 200,000 or so of its own perils—and if the internal security apparatus can’t control the demonstrations, or uses unusually harsh methods to regain control, the internal security threat to Mr. Mubarak’s control from his own citizens will also rise dramatically.

There are those in Israel who want Egypt to take control of Gaza…and it is possible that Israel will use the blockade to create an atmosphere that will “require” Egypt to take “humanitarian” steps—something that might be popular in the Egyptian street…but something that Mr. Mubarak, as we have noted, has no desire to accept.

There are also those who would like to see the Fatah Party take over again in Gaza, removing Hamas from power—but you may recall that Hamas was able to come to power in Gaza because many ordinary Gazans perceived Fatah and Yasser Arafat to be extraordinarily corrupt and ineffectual during their time in power.

The bad news for the US?

We are perceived throughout the Arab and Islamic worlds as the blindly supportive enablers of what Israel is doing in Gaza…and we are perceived in Egypt as the country that enables Mr. Mubarak’s often highly oppressive rule.

As things go badly for the Palestinians, ironically, they get bad for us—and probably for the Israelis as well.

Why? Well, as I often say to my friends, we are making enemies faster than we can kill them. This blind support of Israel against the Gazans isn’t helping matters…but Johann Hari tells the story much better than I:

The world isn’t just watching the Israeli government commit a crime in Gaza; we are watching it self-harm. This morning, and tomorrow morning, and every morning until this punishment beating ends, the young people of the Gaza Strip are going to be more filled with hate, and more determined to fight back, with stones or suicide vests or rockets. Israeli leaders have convinced themselves that the harder you beat the Palestinians, the softer they will become. But when this is over, the rage against Israelis will have hardened, and the same old compromises will still be waiting by the roadside of history, untended and unmade.

To understand how frightening it is to be a Gazan this morning, you need to have stood in that small slab of concrete by the Mediterranean and smelled the claustrophobia. The Gaza Strip is smaller than the Isle of Wight but it is crammed with 1.5 million people who can never leave. They live out their lives on top of each other, jobless and hungry, in vast, sagging tower blocks. From the top floor, you can often see the borders of their world: the Mediterranean, and Israeli barbed wire. When bombs begin to fall – as they are doing now with more deadly force than at any time since 1967 – there is nowhere to hide.

–From an editorial in The Independent, December 29, 2008

There is one bit of good news: if Hillary Clinton can find a way to be seen as an “honest broker”, instead of just a supporter of Israel, the incoming Obama Administration could change the atmosphere enough to allow Gazans and Israelis to again return to negotiations. Can the Obama Administration change the atmosphere enough to induce Israel to adopt a less hard-line anti-Palestinian stance? That may be the biggest question the new Secretary of State finds on her plate next month.

Another possible bit of good news: a rapid settlement and return to a semi-ceasefire status could reduce the long-term political damage. In the unfortunate event of a large-scale ground action by the IDF, it is likely the long-term damage increases. (Some suggest the Israelis chose this moment because they feel the Obama Administration will be less supportive of a hard-line policy than the Bush Administration. If this is true, the window for aggressive action may be closing sooner rather than later.)

So here we are: The Israeli actions against Gaza, intended to end the desire of Gazans to attack Israel, are likely to have exactly the opposite effect…which is spilling over the border to create all kinds of problems for the Mubarak Government in Egypt…all of which means all kinds of new bad news for us.

Hillary Clinton might have problems negotiating with all the players…but if she can overcome that obstacle, there could be a better outcome down the road than we have today.

If Israel cannot be convinced to find a way to develop a different relationship with their Palestinian neighbors—and vice versa—eight years from now President Obama will find himself just as vexed as Mr. Bush is today with his giant Middle Eastern failure…and if events cause Egypt, Pakistan, and maybe even Morocco to slide over to the Iran end of the “scale of hostile nations”, he may find himself quite a bit more vexed than he ever expected.

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On Traffic Checkpoints, Part One, Or, Freedom? That’s So…Inefficient December 2, 2008

The holidays are in full swing…or at least they are in the US…which means your days—and nights—are full of running around like crazy. There’s a million things to do, a thousand errands to run, and…are you kidding me?!

A police sobriety roadblock?
Now?

That’s right: there’s a crowd of officers all around you, there’s no way to avoid it…and even though you’ve committed no crime whatsoever, you get to talk to the police…and if they decide it’s acceptable, you may continue on your way.

How can this be legal in America?
Does it actually serve any purpose?
And what happens when the police decide to blockade your neighborhood–for your own good?

Believe it or not, it’s my job today and tomorrow to answer those questions…and beyond that, to defend the simple right of Americans to go somewhere if we feel like it, without having to explain it to the police…and in today’s discussion, I intend to set the stage through an examination of history.

Sobriety checkpoints are an effective law enforcement tool involving the stopping of vehicles or a specific sequence of vehicles, at a predetermined fixed location, to accomplish two goals: raise the public’s perception of being arrested for driving while impaired (DWI ), and detection of drivers impaired by alcohol and/or other drugs.

–National Highway Traffic Safety Administration, “Low-Staffing Sobriety Checkpoints

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

–The Fourth Amendment to the Constitution of the United States

So, you might ask, how is it that the Fourth Amendment is interpreted to allow searches that are not based upon any probable cause whatever—in fact, that aren’t directed toward any particular individual, but instead, against anyone and everyone that can be processed through a location?

Oddly enough, this whole story, you could say, starts at Customs and Border Protection’s (CBP) San Clemente Station, an immigration checkpoint located roughly 60 miles north of the Mexican Border near San Diego, California (and the home of the famous “running family” traffic signs), where all northbound traffic on the Interstate 5 Freeway is required to stop for an inspection by CBP officers.

If an officer chooses, he can order any vehicle, for any reason, or for none at all, to pull over for a “Secondary Inspection”. That inspection can lead to a search of the vehicle, and possibly the arrest of its occupants.

A Mr. Amado Martinez-Fuerte was arrested at the checkpoint, after such an inspection, for illegally transporting aliens (the two passengers in his car), and when he got to trial his attorney moved to suppress all evidence based on a Fourth Amendment claim, specifically that absent any particular probable cause, the stop and search of his vehicle were illegal. That claim was denied at trial, but upheld upon appeal to the Ninth Circuit Court of Appeals.

His claim and a case with similar context but a differing result from the Fifth Circuit were eventually consolidated and reconciled by the United States Supreme Court in 1976 in United States v. Martinez-Fuerte, 428 U.S. 543.

“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.

And in making that assessment it is imperative that the facts be judged against an objective standard . . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction…

… This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence. ”

Terry v. Ohio, 392 U.S., at 21-22

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

United States v. Ortiz, 422 U.S. 891

And with those inspiring words to guide them, the Court’s majority decided to completely ignore the text of the Fourth Amendment and established precedent and uphold the right of Government agents to search you, even if you’re not suspected of anything at all (and in fact, upholding the “inarticulate hunch” standard)…because the Court felt it was really inconvenient to have to have a reason to search people:

To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens. Such a requirement also would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.

In order to justify this line of thought, the majority adopted a line of logic that suggested that the Government had an overriding need to stop the smuggling of aliens, that this is an effective way to prevent the smuggling of aliens…and that you would find the fact that you have to be stopped and searched as you go about your day—even though you’ve done nothing wrong—so minimal of an intrusion that a warrant would be unnecessary. From the majority opinion:

While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’ right to “free passage without [428 U.S. 543, 558] interruption,” Carroll v. United States, 267 U.S. 132, 154 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which

“`[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.'” United States v. Brignoni-Ponce, supra, at 880.

Strangely enough, what the majority finds concerning is that citizens might object to being stopped and searched because the people running the operation might be some sort of fake police—not the fact that we’re being stopped and questioned in the first place:

“[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” 422 U.S., at 894-895…

… The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest….”

Beyond that, the majority felt that there is a justification for certain forms of “general search warrants”, based on a prior building inspection case (Camara v. Municipal Court, 387 U.S. 523)…meaning that a magistrate can legally issue an “area warrant” permitting the search of any vehicle passing a particular place.

Is this “checkpoint search” technique effective?

According to the record in the case, only 1 in 1,000 vehicles stopped and questioned at the checkpoint contained any deportable aliens, and more than ¾ of the vehicles stopped for Secondary Inspection were in fact unconnected with any smuggling activity.

My guess is that the police could simply choose vehicles that contain Mexican-looking drivers randomly and achieve similar results—and that guess is based on the fact that, at the checkpoint, that’s basically what they do, as the record reveals.

We are going to wrap this up in a minute, but I want to offer a few salient quotes from the dissent in this case:

Today’s decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures… the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. This holding cannot be squared with this Court’s recent decisions in United States v. Ortiz…

…This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual’s protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct…

…The motorist whose conduct has been nothing but innocent – and this is overwhelmingly the case – surely resents his own detention and inspection. And checkpoints, unlike roving stops, detain thousands of motorists, a dragnetlike procedure offensive to the sensibilities of free citizens. Also, the delay occasioned by stopping hundreds of vehicles on a busy highway is particularly irritating…

… Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists…

… Finally, the Court’s argument fails for more basic reasons. There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied.”

So that’s today’s Part One: the sobriety checkpoint that has you ensnared and irritated—again—is only Constitutional because our Government feels that when it comes to catching criminals it’s just too big a pain to follow the rules we set out for them…and all of this is based on an immigration control checkpoint ruling.

When we return, we’ll examine another ruling, Michigan Department of State Police v. Sitz (496 U.S. 444), which specifically authorized sobriety checkpoints…then we’ll see how checkpoints have morphed into something that, at its worst, allows authorities to literally lay siege to a neighborhood, as is happening even today in the Nation’s Capitol…and, finally, we’ll examine the efforts by the Federal Government to spread checkpoints to the states that today ban them.