Tag: Senator John McCain

‘Border Enforcement’ Bill Driven by Election-Year Politics

A $600-million bill to enhance border enforcement has hit a temporary snag in the Senate, but it is almost inevitable, with an election only a few months away, that Congress and the president will spend yet more money trying to enforce our unworkable immigration laws.

“Getting control of the border” is the buzz phrase of the day for politicians in both parties, from Sen. John McCain, R-Ariz., to Sen. Chuck Schumer, D-N.Y. Never mind that apprehensions are down sharply along our Southwest border with Mexico, mostly I suspect because of the lack of robust job creation in the unstimulated Obama economy.

Meanwhile, since the early 1990s, spending on border enforcement has increased more than 700 percent, and the number of agents along the border has increased five-fold, from 3,500 to more than 17.000. (See pages 3-4 of a January 2010 report from the Center for American Progress and the Immigration Policy Center.) Yet the population of illegal immigrants in America tripled during that period. If this were a federal education program, conservatives would rightly accuse the big spenders of merely throwing more money at a problem without result.

To pay for this politically driven expenditure, Congress plans to nearly double fees charged for H1-B and L visas used by foreign high-tech firms to staff their operations in the United States. The increased visa tax will fall especially hard on companies such as the Indian high-tech leaders Wipro, Infosys, and Tata.

This all has the ring of election-year populism. Congress pretends to move us closer to solving the problem of illegal immigrants entering from Latin America by raising barriers to skilled professionals coming to the United States from India and elsewhere to help us maintain our edge in competitive global technology markets.

First, They Came for the Sex Offenders

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend). I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

I responded forcefully that such a system is antithetical to American traditions of due process. Battlefield detention is necessary to incapacitate insurgents and terrorists overseas, and is often employed in lieu of killing them. Broad powers of detention without trial in the criminal context do not make Guantanamo less controversial; they bring it on to our shores and in to our courtrooms. If we have enough information to show that someone is a threat by a preponderance of the evidence in order to detain them, we probably have enough to indict them for conspiracy. One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.

Would the votes in Comstock translate into a Supreme Court ratification of such a system? Probably not, since Kennedy and Alito stressed in their concurrences that the circumstances in Comstock are unique. And Hamdi showed us that Scalia takes habeas corpus rights seriously when it comes to citizens. Unfortunately, only Stevens shared this view and he looks to be replaced by Elena Kagan, who argued that civil commitment in Comstock was an extension of Congress’ power to create and run a prison system (not an enumerated power). But this isn’t about counting the noses currently on the Court; it’s about creating a new normal where the people in prison are detainees, not defendants.

Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens.  McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens.  Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.

And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.

Playing Chicken Again

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

Republicans and Earmarks

This week, a handful of fiscally conservative Republican senators have been trying to cut earmarks out of the $410 billion omnibus appropriations bill. According to Taxpayers for Common Sense, the legislation contains 8,570 earmarks worth $7.7 billion.

Senator Tom Coburn (R-OK) has sought to strike specific items, like the $200,000 earmark for Tattoo Removal Violence Prevention Outreach Program in Burbank, California and the $1.9 million earmark to the Pleasure Beach Water Taxi Service in Connecticut.

Senator John McCain (R-AZ) has taken a broader approach by introducing an amendment to strike all earmarks from the bill and revert to last year’s spending levels.

Not surprisingly, they have been unsuccessful. And given recent events, one must wonder if these efforts by fiscal conservatives are even welcomed by members of their own party.

The amendments introduced by Coburn and McCain were defeated by opposition from not only by the majority of Democratic senators, but also many Republican appropriators, like Senators Thad Cochrane (R-MS) and Lisa Murkowski (R-AK).

And despite his occasional anti-earmark rhetoric and support for the Coburn and McCain amendments, Senate Minority Leader Mitch McConnell (R-KY) is one of the chief beneficiaries of the earmark-laden omnibus bill. Reports suggest he requested either $75 or $51 million for his home state of Kentucky. Either way, he will obtain far more than his Democratic counterpart, Senate Majority Leader Harry Reid (D-NV), whose earmark requests total $26 million.

Democratic Senator Claire McCaskill (D-MO) has been fairly consistent in her criticism of the earmarking process and, for the most part, has voted accordingly. Proving that Republican affection for earmarking is a bicameral phenomenon, her stance attracted ire from Representative Roy Blunt (R-MO), formerly one of the highest-ranking Republicans in House, who said he “would hope that Claire would change her mind on this,” as he praised Senator Kit Bond’s (R-MO) prowess at earmarking.

Now, earmarks make up a relatively small slice of the overall budget, but as Coburn has noted, the problem with earmarks is ‘‘the hidden cost of perpetuating a culture of fiscal irresponsibility. When politicians fund pork projects they sacrifice the authority to seek cuts in any other program.”

For more on earmarks, check out the “Corporate Welfare and Earmarks” chapter of the Cato Handbook for Policymakers.