Tag: justice

This Month at Cato Unbound: A Little Foundational Theory

The October, 2011 issue of Cato Unbound tackles some of the foundational questions of political theory: how do we recognize justice? If it’s not utopia, is it still good enough to command our respect? Or allegiance? How do we know? Who are the members of the political community? How are they chosen? What counts as a “reason” for political action?

If all of this sounds abstract, rest assured that lead essayist Gerald Gaus is both lucid and engaging. He writes:

Liberalism’s founding insight was the recognition in the sixteenth and seventeenth centuries that controversial religious truths could not be the basis of coercive laws and public policies. The task is now to apply this insight to philosophizing about justice itself. This is an extraordinarily difficult lesson for many. Can it really be that I should not endeavor to ensure that my society conforms to my “knowledge” of justice? (Compare: can it really be that my “knowledge” of God’s will should not structure the social order?)

Gaus argues for a “range of justice”—a range of theories that, while perhaps not perfect by anyone’s standards, are still close enough to demand our respect, especially given the large benefits that come from freely engaged social cooperation.

Discussing with him this month are a panel of three other prominent social theorists. Richard Arneson argues that we tolerate one another not because we’re all pretty close to rational (clearly a lot of us aren’t!)—but because intolerance breeds atrocity. Eric Mack argues that classical liberalism is no mere contending sect; it is the right approach to politics, because it offers the greatest leeway for individuals to choose their own ends in life. And Peter J. Boettke argues that any social system that neglects private property will fail to produce a cooperative society in any sense; without market exchange, individuals will fall into strife over scarce resources.

Obviously I won’t be able to do justice to their arguments here, so please do check out Cato Unbound, where discussion will continue through the end of the month.

Gambling Raid in Baltimore

The Baltimore police must have solved the city’s violent crime problem. They’ve shifted resources to illegal gambling:

Baltimore County police arrested five men after an undercover detective infiltrated an illegal high-stakes poker game in Edgemere, records show.

Police say “Texas Hold ‘Em” games were held regularly at the Lynch Point Social Club in the 3100 block of Roger Road, where organizers were making as much as $1,500 in profit a night, according to charging documents.

After receiving a tip, officers conducted surveillance at the club and later sent an undercover detective inside, who participated in a game with a $65 buy-in. The detective played for hours — leaving after he lost all his chips, records show.

A tactical unit conducted a raid on the club Feb. 11, seizing poker chips, electronic gambling machines and a surveillance system, among other items. Forty-one people were inside at the time of the raid.

Posted at the Raidmap, where you can find similar “isolated incidents.” A December gambling raid in South Carolina turned into a gun fight when poker players mistook a SWAT team for armed robbers. The family of Sal Culosi, the Virginia optometrist killed in a 2006 gambling raid, just settled its lawsuit against Fairfax County for $2 million. Radley Balko has more on that tragedy here.

State Secrets, Courts, and NSA’s Illegal Wiretapping

As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.

Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.

But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.

If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.

There was the John Yoo argument that the president essentially becomes omnipotent during wartime, and that if we can shoot Taliban on a foreign battlefield, surely we can wiretap Americans at home if they seem vaguely Taliban-ish. Even under Bush, the Office of Legal Counsel soon backed away from such… creative… lines of argument. Instead, they relied on the post-9/11 Authorization for the Use of Military Force (AUMF) against al-Qaeda, claiming it had implicitly created a loophole in the FISA law. It was David Kris, now head of DOJ’s National Security Division, who most decisively blew that one out of the water, concluding that it was “essentially impossible” to sustain the government’s reading of the AUMF.

Yet you’ll note that none of these issues arise in Walker’s opinion, because the DOJ, in effect, refused to play. They resisted the court at every step, insisting that a program discussed at length on the front pages of newspapers for years now was so very secret that no aspect of it could be discussed even in a closed setting. They continued to insist on this in the face of repeated court rulings to the contrary. So while Al-Haramain has prevailed, there’s no ruling on the validity of any of those arguments. That’s why I think Marcy Wheeler is probably correct when she predicts that the government will simply take its lumps and pay damages rather than risk an appeal. For one, while Obama administration has been happy to invoke state secrecy as vigorously as its predecessor, it would obviously be somewhat embarrassing for Obama’s DOJ to parrot Bush’s substantive claims of near-limitless executive power. Perhaps more to the point, though, some of those legal arguments may still be operative in secret OLC memos. The FISA Amendments Act aimed to put the unlawful Bush program under court supervision, and even reasserted FISA’s language establishing it as the “exclusive means” for electronic surveillance, which would seem to drive a final stake in the heart of any argument based on the AUMF. But we ultimately don’t know what legal rationales they still consider operative, and it would surely be awkward to have an appellate court knock the legs out from under some of these secret memoranda.

None of this is to deny that the ruling is a big deal—if nothing else because it suggests that the government does not enjoy total carte blanche to shield lawbreaking from review with broad, bald assertions of privilege. But I also know that civil libertarians had hoped that the courts might be the only path to a more full accounting of—and accountability for—the domestic spying program. If the upshot of this is simply that the government must pay a few tens, or even hundreds of thousands of dollars in damages, it’s hard not to see the victory as something of a disappointment.

Policing for Profit

Our friends at the Institute for Justice just released a comprehensive report on the abuses that go on under the legal procedure known as “civil asset forfeiture.”  The report is called Policing for Profit (pdf). Here is a short video clip that IJ put together:

Senior IJ attorney Scott Bullock will be speaking on this subject here at the Cato Institute on April 28.  Details on that event are forthcoming.

For related Cato work on forfeiture, go here and here.

Wars, Crimes, and Underpants Bombers

I’ve been meaning to follow up on Gene Healy’s post from last week on the interrogation and prosecution of terror suspects.  I share Gene’s bemusement at the howls emanating from Republicans who have abruptly decided that George Bush’s longstanding policy of dealing with terrorism cases through the criminal justice system is unacceptable with a Democrat in the White House.  But I also think it’s worth stressing that the arguments being offered – both in the specific case of Umar Farouk Abdulmutallab and more generally – aren’t very persuasive even if we suppose that they’re not politically motivated.

Two caveats.  First, folks on both sides would do well to take initial reports about the degree of cooperation terror suspects are providing with a grain of salt. For reasons too obvious to bother rehearsing, investigators won’t always want to broadcast accurately or in detail the precise degree of cooperation a suspect is providing.   Second, as Gene noted, given that it seems unlikely we’ll need to use Abdulmutallab’s statements against him at trial, the question of whether the civilian or military system is to be preferred can be separated from the argument about the wisdom of Mirandizing him. That said, the facts we have just don’t seem to provide a great deal of support for the conclusion that, warning or no, criminal investigators are somehow incapable of effectively questioning terrorists.

Certainly if you ask veteran FBI interrogators, they don’t seem to share this concern that they won’t be able to extract intelligence their military counterparts would obtain. You might put that assessment down to institutional pride, but it’s consistent with the evidence, as the FBI has had impressive successes on this front already. And if you don’t want to take their word for it, you can always ask Judge Michael Mukasey who, before becoming attorney general under George W. Bush, ruled that military detainees were entitled to “lawyer up” – as critics of the Bush/Obama approach are wont to put it – explicitly concluding that “the interference with interrogation would be minimal or nonexistent.”

Nor, contra the popular narrative, does it appear to have interfered in the Abdulmutallab case.  Republicans leapt to construe sketchy early reports as implying that the failed bomber had been talking to investigators, then clammed up upon being read his Miranda rights and provided with counsel. But that turns out to have gotten the order of events wrong. In reality, Abdulmutallab was initially talkative – perhaps the shock of having set off an incendiary device in his pants overrode his training – but then ceased cooperating before being Mirandizied. Rather, it was the urging of his family members that appears to have been crucial in securing his full cooperation – family members whose assistance would doubtless have been far more difficult to secure without assurances that he would be treated humanely and fairly within the criminal justice system. It’s possible, one supposes, that the emo terrorist might have broken still more rapidly in military custody, but it seems odd to criticize the judgment of the intelligence professionals directly involved with the case, given that their approach has manifestly worked, on the basis of mere speculation about the superior effectiveness of an alternative approach.

Stepping back from this specific case, there seem to be strong reasons to favor recourse to the criminal systems in the absence of some extraordinarily compelling justification for departing from that rule in particular cases. Perhaps most obviously, few terror suspects are quite so self-evidently guilty as Abdulmutallab, and so framing the question of their treatment as one of the due process rights afforded “terrorists” begs the question. The mantra of those who prefer defaulting to military trial is that “we are at war” – but this is an analytically unhelpful observation.  We’re engaged in a series of loosely connected conflicts, some of which look pretty much like conventional wars, some of which don’t. This blanket observation tells us nothing about which set of tools is likely to be most effective in a particular case or class of cases – any more than it answers the question of which battlefield tactics will best achieve a strategic goal.

For the most part, the insistent invocation of the fact that “we’re at war” seems to be a kind of shibboleth deployed by people who want to signal that they are Very, Very Serious about national security without engaging in serious thought about national security. If it came without costs, I would be loath to begrudge them this little self-esteem boosting ritual. But conflict with terrorists is, by definition, a symbolic conflict, because terrorism is first and foremost a symbolic act. As Fawaz Gerges documents in his important book The Far Enemy, jihadis had traditionally been primarily concerned with the fight to impose their rigid vision in the Muslim world, and to depose rulers perceived as corrupt or too secular.  The controversial – and even among radical Islamists,quite unpopular – decision to strike “the Far Enemy” in the United States was not motivated by some blind bloodlust, or a desire to kill Americans as an end in itself. Rather, Osama bin Laden and Ayman al-Zawahiri hoped that a titanic conflict between Islam and the West could revive flagging jihadi movement, galvanize the ummah, and (crucially) enhance the prestige of Al Qaeda, perceived within jihadi circles as a fairly marginal organization.

This has largely backfired. But it’s important to always bear in mind that attacks on the United States, especially by sensational methods like airplane bombings, are for terror groups essentially PR stunts whose value is ultimately instrumental. They don’t do it for the sheer love of blowing up planes; they do it as a means of establishing their own domestic credibility vis a vis more locally-focused Islamist groups (violent and peaceful) with whom they are competing for recruits. While our response to these attempts will often necessarily have some military component, there is no reason to bolster their outreach efforts by making a big public show of treating Al Qaeda in the Arabian Peninsula as tantamount to a belligerent foreign state.  Better, when it’s compatible with our intelligence gathering and security goals, to treat Abdulmutallab and his cohorts as just one more band of thugs.

Are You a Criminal? Maybe You Are and Don’t Know It

Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court.  When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,

[T]here are 150 million workers in the United States.  I think possibly 140 [million] of them flunk your test.

There it is.  Some of us have been trying to draw more attention to the dangerous trend of overcriminalization.  Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.”  And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors).  Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers.  Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.

For more on this subject, go here, here,  and here.

Greenwald on the Arrar Ruling

Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day.  Here’s an excerpt:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured – to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.

Read the whole thing.   Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.