Tag: due process

Recommended Reading

Assorted media clips worth catching up with over the holiday:

  • You’ve probably seen the ongoing scandal about how local officials used the southern California city of Bell to enrich themselves at taxpayer expense. A Los Angeles Times investigation finds that the city was milking small tradespeople too: “Legal experts point to a lack of due process and judicial oversight in hundreds of ‘civil compromises,’ in which plumbers, carpet cleaners and bottle-gatherers paid up to $1,000 for alleged code violations.”
  • “To get the check, you’ve got to medicate the child”: a horrifying Boston Globe series exposes how the incentives created by the federal SSI dependent disability program result in the overdiagnosis of disability among school-age kids. The result can be lifelong dependency, especially when grown kids realize that entering the labor force would make their families worse off by losing the “disability money.” [first, second, third parts, more]
  • A U.S. Congressman ousted by Ohio voters in last month’s election is suing a PAC that campaigned against him, saying its unfair ads deprived him of his “livelihood” [Cincinnati Enquirer, Politico]
  • The supposedly poisoned town of Hinkley, Calif., made famous by the Julia Roberts vehicle Erin Brockovich, turns out to have cancer rates a bit below the average, a new epidemiological study finds [more];
  • Aside from the morality aspects, there are really good reasons not to steal a meerkat (via).

Internet Censorship Bill Threatens Free Speech, Rule of Law

On Thursday the Senate Judiciary Committee unanimously approved the Combating Online Infringements and Counterfeits Act. Its backers, including Hollywood and the recording industry, are hoping to rush the legislation through Congress during the current “lame duck” session. The legislation empowers the attorney general to draw up a list of Internet domain names he considers to be “dedicated to infringing activities,” and to obtain a variety of court orders designed to block access to these sites for American Internet users.

To understand the proposal, it helps to know a bit about the Domain Name System, or DNS, that is the focus of the bill. The DNS is the Internet’s directory service. Computers on the Internet are assigned (mostly) unique numbers like “72.32.118.3,” but these numbers are not convenient for human users to remember. So instead websites use domain names like “cato.org,” and our computers use the DNS system to automatically translates these names into their corresponding IP addresses. DNS is a distributed system; thousands of Internet Service Providers operate DNS servers for the use of their own customers.

Under COICA, when the attorney general accused a domain name of being “dedicated” to copyright infringement, the courts would issue orders not against the owners of the domain name (who may be overseas) but against domain-name registrars and the operators of DNS servers here in the United States. This means that thousands of systems administrators would be required to maintain a large and constantly-changing list of blacklisted domains. This is a significant and unfair administrative burden on private parties who have absolutely no connection to infringing activities.

The legislation falls far short of constitutional due process requirements. Legal injunctions would be issued upon the attorney general’s mere accusation of “infringing activities.” Not only would the owner of the domain name not have an opportunity to contest the allegations, he would not even have to be notified. And the parties who would receive notice under the legislation—DNS registrars and server administrators—will typically have no knowledge of or connection to the accused domain, which means they would have neither the knowledge or the motivation to dispute unreasonable orders.

This is especially problematic because we are talking about constitutionally-protected speech here. The Supreme Court has long held that prior restraints of speech are unconstitutional. The websites on the government’s blacklist may have a large amount of constitutionally-protected speech on them, in addition to allegedly-infringing material. Not only does COICA not require the government to prove its allegations before a domain name is blocked, it doesn’t require the government to ever prove them.

Earlier this year, my colleague Jim Harper praised Secretary Clinton’s speech making Internet freedom a centerpiece of the Obama administration’s diplomatic agenda. Secretary Clinton was right to lecture foreign governments about the evils of Internet censorship; her former colleagues in the US Senate should listen to her.

Private Ownership of Public Law

Carl Malamud is a breakthrough thinker and doer on transparency and open government. In the brief video below, he makes the very interesting case that various regulatory codes are wrongly withheld from the public domain while citizens are expected to comply with them. It’s important, mind-opening stuff.

It seems a plain violation of due process that a person might be presumed to know laws that are not publicly available. I’m not aware of any cases finding that inability to access the law for want of money is a constitutional problem, but the situation analogizes fairly well to Harper v. Virginia, in which a poll tax that would exclude the indigent from voting was found to violate equal protection.

Regulatory codes that must be purchased at a high price will tend to cartelize trades by raising a barrier to entry against those who can’t pay for copies of the law. Private ownership of public law seems plainly inconsistent with due process, equal protection, and the rule of law. You’ll sense in the video that Malamud is no libertarian, but an enemy of an enemy of ordered liberty is a friend of liberty.


Targeted Killing of U.S. Citizen a State Secret?

That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:

[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

In fairness, Rivkin would defend the administration’s claim of power on other grounds – that targeting is a “political question” for the elected branches of government – but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.

Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.

Liberty Requires Risk

That’s the message of my recent op-ed in the Daily Caller. New York City Mayor Michael Bloomberg’s initial reaction to the McDonald v. City of Chicago decision was to say that McDonald would have no impact on government’s ability to keep guns “out of the hands of criminals and terrorists.” This was a reference to legislation that Bloomberg supports that would allow the federal government to bar anyone the Attorney General thinks is a terrorist from purchasing a firearm. Not convicted of a crime in support of terrorism — that would make them a felon and already unable to purchase or own a firearm. No, being suspected of activity in support of or preparation for terrorism means you get the same treatment as if you were a convicted felon or had been involuntarily committed to a mental institution. So much for due process.

While D.C. v. Heller is the relevant decision (the AG’s double secret probation list is a federal, not state action), the premise of this legislation needs to be refuted. The proposition that guns and gun ownership are uniquely dangerous such that the right to keep and bear arms must be treated as a second-class provision of the Bill of Rights is willfully blind of the other instances where society accepts risk by safeguarding liberty in the face of foreseeable hazards. Justice Stephen Breyer embraced this misguided concept –– that the right to keep and bear arms is an enumerated, but non-fundamental, right that deserves a lesser degree of protection than the rest of the provisions of the Bill of Rights — in his McDonald dissent.

I counter that notion in this podcast:

Related thoughts from Ilya Somin here.

The Lieberman-Brown Bill Merely Updates Expatriation Law for the 21st Century

Stripping the citizenship of those who take up arms against the United States is not a controversial proposition. Indeed, under existing law, American citizenship can be taken away from any adult who, among other actions, makes a formal declaration of allegiance to a foreign state, serves in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States, or commits any act of treason against the United States. The Lieberman-Brown bill, which adds to that list the provision of material support to State Department-recognized terrorist organizations (most notably Al Qaeda) or actively engaging in hostilities against the United States, is thus not problematic on its face. It merely clarifies, in an age where America’s enemies aren’t necessarily other countries, that a person need not ally himself with a hostile “foreign state” to risk expatriation.

Still, the Terrorist Expatriation Act does raise concerns about how the new citizenship-stripping provisions would be applied. Expatriation is a serious remedy that is warranted only in the most serious cases — such as, indeed, treason or taking up arms against your own country. If and when the act becomes law, courts will maintain a high bar for what constitutes “material support” of terrorist organizations (such that it constitutes relinquishing U.S. nationality), and the subject of the expatriation action will — under existing law that will remain unchanged — have notice and opportunity to challenge the decision.

In short, this is neither a radical threat to civil liberties nor an ineffectual political stunt. Assuming the above constitutional protections remain in place, the expansion of federal expatriation law should be seen as a prudent, necessary, and uncontroversial measure that deals with the realities of the modern world.

Accountability for ‘Exigent Letter’ Abuse At Last?

It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for  this systematic lawbreaking and the efforts to conceal it. But the bipartisan outrage expressed at a subcommittee hearing of the House Judiciary Committee this morning hints that Congress may be running out of patience—and looking for some highly-placed heads to roll. Just to refresh, Committee Chairman John Conyers summarized the main abuses in an opening statement:

The IG found that more than 700 times, such information was obtained about more than 2,000 phone numbers by so-called“exigent letters” from FBI personnel. In some cases, the IG concluded, FBI agents sent the letters even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by e‐mail, requests on a post‐it note, or “sneak peaks” of telephone company computer screens or other records…. In one case, the FBI actually obtained phone records of Washington Post and New York Times reporters and kept them in a database, leading to an IG conclusion of “serious abuse” of FBI authority and an FBI public apology.

It’s probably actually worse than that: Since these letters often requested a “community of interest” analysis for targeted numbers, the privacy of many people beyond the nominal targets may have been implicated—though it’s hard to be sure, since the IG report redacts almost all details about this CoI mapping.

And as Rep. Jerry Nadler pointed out, the IG report suggests a “clear pattern here of deliberate evasion,” rather than the innocent oversight the Bureau keeps pleading.  Both Nadler and the Republican ex-chair of the committee, Rep. James Sensenbrenner, expressed frustration at their sense that, when the FBI had failed to win legislative approval for all the powers on its wish list, it had simply ignored lawful process, seizing by fiat what Congress had refused to grant. Sensenbrenner, one of the authors of the Patriot Act, even declared that he felt “betrayed.” But we’ve heard similar rhetoric before. It was the following suggestion from Conyers (from my notes, but pretty near verbatim) that really raised an eyebrow:

There must be further investigation as to who and why and how somebody in the Federal Bureau of Investigation could invent a practice and have allowed it to have gone on for three consecutive years.  I propose and hope that this committee and its leadership will join me, because I think there may be grounds for removal of the general counsel of the FBI.

That would be Valerie Caproni, one of the hearing’s two witnesses, and an executive-level official whose dismissal would be the first hint of an administration response commensurate with the gravity of the violations that occurred. Caproni’s testimony, consistent with previous performances, was an awkward effort to simultaneously minimize the seriousness of FBI’s abuses—she is fond of saying “flawed” when le mot juste is “illegal”—and also to assure legislators that the Bureau was treating it with the utmost seriousness already. Sensenbrenner appeared unpersuaded, at one point barking in obvious irritation: “I don’t think you’re getting the message; will you get the message today?” The Republican also seemed to indirectly echo Conyers’ warning, declaring himself “not unsympathetic” to the incredulous chairman’s indictment of her office. Of course, the FBI has it’s own Office of Professional Responsibility which is supposed to be in charge of holding agents and officials accountable for malfeasance, but apparently the wheels there are still grinding along.

It’s also worth noting that Inspector General Glenn Fine, who also testified, specifically urged Congress to look into a secret memo issued in January by the Office of Legal Counsel, apparently deploying some novel legal theory to conclude that many of the call records obtained by the FBI were not covered by federal privacy statutes after all. This stood out just because my impression is that OIG usually limits itself to straight reporting and leaves it to Congress to judge what merits investigation, suggesting heightened concern about the potential scope of the ruling, despite FBI’s pledge not to avail itself of this novel legal logic without apprising its oversight committees. Alas, the details here are classified, but Caproni did at one point in her testimony conclude that “disclosure of approximately half of the records at issue was not forbidden by ECPA and/or was
connected to a clear emergency situation.”  There were 4,400 improperly obtained “records at issue” in the FBI’s internal review, of which about 150 were ultimately retained on the grounds that they would have qualified for the emergency exception in the Electronic Communications Privacy Act.  Since that tally didn’t include qualifying records for which legitimate process had nevertheless been issued at some point, the number of “real” emergencies is probably slightly higher, but that still suggests that the “half” Caproni alludes to are mostly in the “disclosure…not forbidden by ECPA” category.  Since ECPA is fairly comprehensive when it comes to telecom subscriber records—or at least, so we all thought until recently—we have to assume she means that these are the types of records the OLC opinion has removed from FISA’s protection. If those inferences are correct, and the new OLC exception covers nearly half of the call detail records FBI obtains, that would not constitute a “loophole” in federal electronic privacy law so much as its evisceration.

Of course, it’s possible that the specific nature of the exception would allay civil libertarian fears. What’s really intolerable in a democratic society is that we don’t know. Operational facts about specific investigations, and even specific investigatory techniques, are rightly classified. But an interpretation of a public statute so significant as to potentially halve its apparent protections cannot be kept secret without making a farce of the rule of law.