Tag: law enforcement

Flex Your Rights

Friends of the Cato Institute who closely follow the news about search and seizure and other civil liberties issues will probably know that there are simple, practical steps one can take to exercise our constitutionally guaranteed liberties, even when confronted by the police.

For everyone else, there’s Flex Your Rights. Founded by former Cato intern Steven Silverman, Flex Your Rights aims to teach ordinary citizens how to make good use of their civil liberties:

The vast majority of people are mystified by the basic rules of search and seizure and due process of law. Consequentially, they’re likely to be tricked or intimidated by police into waiving their constitutional rights, resulting in a greater likelihood of regrettable outcomes.

The sum of these outcomes flow into all major criminal justice problems – including racial and class disparities in search, arrest, sentencing and incarceration rates.

In order to ensure that constitutional rights and equal justice are upheld by law enforcement, we must build a constitutionally literate citizenry.

“Regrettable outcomes” aren’t limited to time behind bars for breaking the drug laws. Consider also damage to property during searches, loss of dignity and privacy, wasted law enforcement time, and police violence during what’s sure to be a nerve-wracking encounter. All of this can happen even when you’re not violating any laws at all, and that’s reason enough to refuse a search.

The police, and the laws themselves, should work for us, and if we don’t require their help, then that should usually be for us to decide. Flex Your Rights is here to help you do so. They’ve just launched a revamped website, which looks great, and they also have a new film in production titled 10 Rules for Dealing with Police. I look forward to seeing it!

Cheye Calvo Reflects on SWAT Shooting

Cheye Calvo is the DC-area small-town mayor who had his two pet dogs shot and killed by a botched drug raid about a year ago.  In an article to be published in this Sunday’s Washington Post, Calvo reflects upon his experience – not just the raid itself, but on the actions of the police department afterward.  Excerpt:

I remain captured by the broader implications of the incident. Namely, that my initial take was wrong: It was no accident but rather business as usual that brought the police to – and through – our front door.

In the words of Prince George’s County Sheriff Michael Jackson, whose deputies carried out the assault, “the guys did what they were supposed to do” – acknowledging, almost as an afterthought, that terrorizing innocent citizens in Prince George’s [County] is standard fare. The only difference this time seems to be that the victim was a clean-cut white mayor with community support, resources, and a story to tell the media.

What confounds me is the unmitigated refusal of county leaders to challenge law enforcement and to demand better – as if civil rights are somehow rendered secondary by the war on drugs.

Mr. Calvo has been a super advocate for reform – he has given up countless hours of his spare time to study and speak on this subject so that fewer people will be victimized the same way his family was.  He spoke at a Cato Hill Briefing over the summer.

Calvo told his story at Cato last year.

For related Cato research, go here and here.

A Chance to Fix the PATRIOT Act?

As Tim Lynch noted earlier this week, Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration.

But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.

Consider the much-contested “roving wiretap” provision allowing warrants under the Foreign Intelligence Surveillance Act to cover all the communications devices a target might use without specifying the facilities to be monitored in advance—at least in cases where there are specific facts supporting the belief that a target is likely to take measures to thwart traditional surveillance. The objection to this provision is not that intelligence officers should never be allowed to obtain roving warrants, which also exist in the law governing ordinary law enforcement wiretaps. The issue is that FISA is fairly loosey-goosey about the specification of “targets”—they can be described rather than identified. That flexibility may make some sense in the foreign intel context, but when you combine it with similar flexibility in the specification of the facility to be monitored, you get something that looks a heck of a lot like a general warrant. It’s one thing to say “we have evidence this particular phone line and e-mail account are being used by terrorists, though we don’t know who they are” or “we have evidence this person is a terrorist, but he keeps changing phones.” It’s another—and should not be possible—to mock traditional particularity requirements by obtaining a warrant to tap someone on some line, to be determined. FISA warrants should “rove” over persons or facilities, but never both.

The DOJ letter describes the so-called “Lone Wolf” amendment to FISA as simply allowing surveillance of targets who are agents of foreign powers without having identified which foreign power (i.e. which particular terrorist group) they’re working for. They say they’ve never invoked this ability, but want to keep it in reserve. If that description were accurate, I’d say let them. But as currently written, the “lone wolf” language potentially covers people who are really conventional domestic threats with only the most tenuous international ties—the DOJ letter alludes to people who “self-radicalize” by reading online propaganda, but are not actually agents of a foreign group at all.

Finally, there’s the “business records” provision, which actually covers the seizure of any “tangible thing.”  The problems with this one probably deserve their own post, and ideally you’d just go through the ordinary warrant procedure for this. But at the very, very least there should be some more specific nexus to a particular foreign target than “relevance” to a ongoing investigation before an order issues. The gag orders that automatically accompany these document requests also require more robust judicial scrutiny.

Some of these fixes—and quite a few other salutary reforms besides—appear to be part of the JUSTICE Act which I see that Sen. Russ Feingold (D-WI) introduced earlier this afternoon.  I’ll take a closer look at the provisions of that bill in a post tomorrow.

Bagram, Habeas, and the Rule of Law

Andrew C. McCarthy has an article up  at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.

McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.

More details after the jump.

McCarthy is Factually Misleading

McCarthy begins by criticizing a decision by District Judge John Bates to allow three detainees in Bagram, Afghanistan, to file habeas corpus petitions testing the legitimacy of their continued detention. McCarthy would have you believe that this is wrong because they are held in a combat zone and that they have already received an extraordinary amount of process by wartime detention standards. He is a bit off on both accounts.

First, this is not an instance where legal privileges are “extended to America’s enemies in Afghanistan.” The petition from Bagram originally had four plaintiffs, none of whom were captured in Afghanistan – they were taken into custody elsewhere and moved to Bagram, which is quite a different matter than a Taliban foot soldier taken into custody after an attack on an American base. As Judge Bates says in his decision, “It is one thing to detain t

hose captured on the surrounding battlefield at a place like Bagram, which [government attorneys] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Judge Bates also took into account the political considerations of hearing a petition from Haji Wazir, an Afghan man detained in Dubai and then

moved to Bagram. Because of the diplomatic implications of ruling on an Afghan who is on Afghan soil, Bates dismissed Wazir’s petition. So much for judicial “despotism” and judicial interference on the battlefield, unless you define the world as your battlefield.

Second, the detainees have not been given very much process. Their detentions have been approved in “Unlawful Enemy Combatant Review Boards.” Detainees in these proceedings have no American representative, are not present at the hearings, and submit a written statement as to why they should be released without any knowledge of what factual basis the government is using to justify their detention. This is far less than the Combatant Status Review Tribunal procedures held insufficient in the Supreme Court’s Boumediene ruling.

Yes, Fix Detention in Afghanistan

McCarthy then chides the Obama administration for trying to get ahead of the courts by affording more process to detainees: “See, we can give the enemy more rights without a judge ordering us to do so!”

Well, yes. We should fix the detention procedures used in Afghanistan to provide the adequate “habeas substitute” required by Boumediene so that courts either: (1) don’t see a need to intervene; or (2) when they do review detention, they ratify the military’s decision more often than not.

Thing is, the only substitute for habeas is habeas. Habeas demands a hearing, with a judge, with counsel for both the detainee and the government, and a weighing of evidence and intelligence that a federal court will take seriously. If the military does this itself, then the success rate in both detaining the right people and sustaining detention decisions upon review are improved.

This is nothing new or unprecedented. Salim Hamdan, Usama Bin Laden’s driver, received such a hearing prior to his military commission. The CSRT procedures that the Bagram detainees are now going to face were insufficient to subject Hamdan to a military commission, so Navy Captain Keith Allred granted Hamdan’s motion for a hearing under Article V of the Geneva Conventions to determine his legal status.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia. Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Hamdan’s Article V hearing should be the template for battlefield detention. Charles “Cully” Stimson at the Heritage Foundation, a judge in the Navy JAG reserves and former Bush administration detainee affairs official, wrote a proposal to do exactly that, Holding Terrorists Accountable: A Lawful Detention Framework for the Long War.

The more we legitimize and regularize these decisions, the better off we are. Military judges should be writing decisions on detention and publishing declassified versions in military law reporters. One of the great tragedies of litigating the detainees from the early days in Afghanistan is that a number were simply handed to us by the Northern Alliance with little to no proof and plenty of financial motive for false positives. My friends in the service tell me that we are still running quite a catch-and-release program in Afghanistan. I attribute this to arguing over dumb cases from the beginning of the war when we had little cultural awareness and a far less sophisticated intelligence apparatus. Detention has become a dirty word. By not establishing a durable legal regime for military detention, we created lawfare fodder for our enemies and made it politically costly to detain captured fighters.

The Long-Term Picture

McCarthy, along with too many on the Right, is fixated on maintaining executive detention without legal recourse as our go-to policy for incapacitating terrorists and insurgents. In the long run we need to downshift our conflicts from warmaking to law enforcement, and at some point detention transitions to trial and conviction.

McCarthy might blast me for using the “rule of law” approach that he associates with the Left and pre-9/11 counterterrorism efforts. Which is fine, since, just as federal judges “have no institutional competence in the conduct of war,” neither do former federal prosecutors.

Counterterrorism and counterinsurgency are not pursued solely by military or law enforcement means. We should use both. The military is a tool of necessity, but in the long run, the law is our most effective weapon.

History dictates an approach that uses military force as a means to re-impose order and the law to enforce it. The United States did this in Iraq, separating hard core foreign fighters from local flunkies and conducting counterinsurgency inside its own detention facilities. The guys who were shooting at Americans for a quick buck were given some job training and signed over to a relative who assumed legal responsibility for the detainee’s oath not to take up arms again. We moved detainees who could be connected to specific crimes into the Iraqi Central Criminal Court for prosecution. We did all of this under the Law and Order Task Force, establishing Iraqi criminal law as the law of the land.

We did the same in Vietnam, establishing joint boards with the Vietnamese to triage detainees into Prisoner of War, unlawful combatant, criminal defendant, and rehabilitation categories.

The Washington Post article on our detention reforms in Afghanistan indicates that we are following a pattern similar to past conflicts. How this is a novel and dangerous course of action escapes me.

Who’s the Despot Here?

McCarthy points to FDR as a model for our actions in this conflict between the Executive and Judiciary branches. He says that the President should ignore the judgments of the courts in the realm of national security and their “despotic” decrees. I do not think this word means what he thinks it means.

FDR was the despot in this chapter of American history, threatening to pack the Supreme Court unless they adopted an expansive view of federal economic regulatory power. The effects of an expansive reading of the Commerce Clause are felt today in an upending of the balance of power that the Founders envisioned between the states and the federal government.

McCarthy does not seem bothered by other historical events involving the President’s powers as Commander-in-Chief in the realm of national security. The Supreme Court has rightly held that the President’s war powers do not extend to breaking strikes at domestic factories when Congress declined to do so during the Korean War, trying American citizens by military commission in places where the federal courts are still open and functioning, and declaring the application of martial law to civilians unconstitutional while World War II was under way.

The Constitution establishes the Judiciary as a check on the majoritarian desires of the Legislature and the actions of the Executive, even during wartime. To think otherwise is willful blindness.

Anti-Sex School for Johns?

In a novel approach to punishing men who attempt to hire prostitutes, Nashville and other cities are sending first-time offenders to a one-day class where they learn from former prostitutes, health experts, psychologists and law enforcement officers about “the risks of hiring a prostitute.”

This is a waste of time.

Prostitution is “the oldest profession” for a reason: sex is a biological imperative. A day of anti-sex school will have no effect on the demand for prostitution.

The better approach is to legalize.

Under legalization, the vast majority of men would patronize legal establishments. This would also allow quality control, since competition would encourage prostitution services to certify their employees as free from STDs and above the age of consent. Legalization would help the women who serve as prostitutes by reducing the violence they suffer from johns and pimps. In particular, legalization would mainly eliminate forced prostitution.

The claim that prostitution encourages sexual assault does not pass the sniff test. Many countries, plus Nevada and Rhode Island, allow legal prostitution to varying degrees, but no evidence suggests they have a higher incidence of violence toward women.

C/P Libertarianism, from A to Z

The Zero Percent Doctrine

I was never a fan of Dick Cheney’s one percent doctrine.

According to Ron Suskind, after 9/11 Cheney explained to law enforcement and intelligence officials that they should treat even the one percent chance of a terrorist attack as a mathematical certainty. The particular case was of a Pakistani nuclear scientist helping al-Qaeda to acquire a nuclear bomb, but the standard became a shorthand for U.S. counterterror efforts generally. No scale of effort would be too great. Better to chase down 100 leads, 99 of which turn out to be bogus, because finding just that one nugget would have been worth the level of effort.

Now we have evidence that the federal government is chasing down far more than 99 blind alleys for just one lead. From today’s front-page story in the New York Times, Eric Schmitt explains how the FBI has adapted and evolved since 9/11:

The bureau now ranks fighting terrorism as its No. 1 priority. It has doubled the number of agents assigned to counterterrorism duties to roughly 5,000 people, and has created new squads across the country that focus more on deterring and disrupting terrorism than on solving crimes.

But the manpower costs of this focus are steep, and the benefits not always clear. Of the 5,500 leads that the squad has pursued since it was formed five years ago, only 5 percent have been found credible enough to be sent to permanent F.B.I. squads for longer-term investigations, said Supervisory Special Agent Kristen von KleinSmid, head of the squad. Only a handful of those cases have resulted in criminal prosecutions or other law enforcement action, and none have foiled a specific terrorist plot, the authorities acknowledge. (Emphasis mine.)

So, just to review:

  • 5,500 leads over 5 years
  • 5 percent deemed credible
  • “A handful” technically would mean five or less, but charitably might total a few dozen. Still, that translates to far less than 1 percent of leads investigated resulting in a criminal prosecution.

But, and here’s the kicker,

  • None – zero, zip, nada – foiled a specific terrorist plot.

On the face of it, this seems like a waste of time and resources that should be spent elsewhere.

There are several plausible explanations, however, for why I’m wrong and why those who believe that we are not dedicating sufficient resources to combating terrorism are right.

  • Perhaps other government agencies have been far more effective at disrupting terror plots. (But when the relative comparison is zero, it isn’t very hard to clear that bar.)
  • Perhaps Schmitt got his facts wrong. (Doubtful. He is one of the most experienced and reliable reporters on the beat.)
  • Perhaps the knowledge that 5,000 people chasing down 5,500 leads deters would-be terrorists from even attempting anything. (Or it could simply be helping bin Laden’s plan “to make America bleed profusely to the point of bankruptcy.”)

Two other points bear consideration. First, it is possible that arresting, prosecuting and convicting people of lesser crimes disrupts what might someday become a full-scale terror plot. There is no reason to think that the guy trying to cut down the Brooklyn Bridge with a blowtorch was much smarter than the 15 guys who provided the muscle for the 9/11 attacks. The difference was leadership, which defined a plausible terrorist attack and devised the means to carry it out. That said, there are problems associated with the expansion of federal laws, and the growing power of prosecutors, and I would still much prefer that common criminals be handled in a run-of-the-mill fashion. Local cops, local prosecutors, local jails.

Which leads to the second point. Reflecting the growing federalization of the criminal law, the FBI strayed into a number of areas even before 9/11 that should have been handled by local law enforcement. This expansion of the federal criminal law poses a threat to individual liberty. (Thanks to Tim Lynch for pointing to this source.) But counterterrorism is one of the few legitimate functions for a federal law enforcement agency, and if the FBI is devoting more resources to that than to other crimes, that in and of itself wouldn’t be a bad thing.

I remain unconvinced, however, that what we are seeing is a wise expenditure of resources. And while I understand that zero terrorist plots uncovered is not equal to zero threat of a future attack, it is incumbent on the FBI – and more generally those who think that the problem is too little, as opposed to much, being devoted to counterterrorism – to prove why they need still more resources.

Until that occurs, I think that UCLA’s Amy Zegart, who is quoted in the Times story, should get the last word on this point:

Just chasing leads burns through resources. … You’re really going to get bang for the buck when you chase leads based on a deeper assessment of who threatens us, their capabilities and indicators of impending attack. Right now, there’s more chasing than assessing.