Topic: Law and Civil Liberties

War Powers in the Bush-Obama Era

Over at the National Interest, I have a piece examining President Obama’s claim, in his nationally televised address Wednesday night, that “I have the authority to address the threat from ISI[S].” 

Just where he’s supposed to get that authority isn’t clear—even to the Obama administration itself. In the last week, Obama officials have invoked (1) the War Powers Resolution, (2) the 2002 Authorization of Military Force (AUMF) against Iraq, and (3) the AUMF that Congress passed three days after 9/11. Any AUMF in a storm, it seems. 

As I explain in the article, not one of those claims survives a good-faith reading of the relevant legislative text. The WPR specifically forecloses any interpretation that it grants the president a “free pass” for elective bombing. And invoking the 2001 or 2002 AUMF for a new war against a new enemy over a decade later is the sort of statute-stretching that makes using TARP to bail out car companies look timid by comparison. 

You could describe the president’s approach as “three bad arguments in search of a theme.” Near as I can discern it, that theme is, “I’m not George W. Bush.” 

Apparently, it’s very important to Barack Obama to make clear that he doesn’t subscribe to the Congress-be-damned, I’m the “Decider” approach of his predecessor. Justifying war on a pure presidential power theory is for bad people like Dick Cheney and John Yoo, the legal architect of the Bush-Cheney “Terror Presidency.” (Though, of course, Bush went to Congress for authorization in Iraq and Afghanistan, even while denying he needed it).

Obama’s nothing like that, he’ll have you know. He’s the guy who told us on the campaign trail that “The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers,” and affirmed that the president lacks the power to launch military attacks absent an “actual or imminent threat to the nation.”  (His eventual veep, Joe Biden, went further, promising to “impeach [Bush] if he takes the nation to war against Iran without congressional approval.”)

And yet, it’s hard to escape the echoes of Obama’s predecessor in Wednesday night’s speech, from his case for preventive war against an enemy that “if left unchecked… could pose a growing threat beyond that region—including to the United States,” to his promise to “support Iraq’s efforts to stand up National Guard Units” (When they stand up, we will stand down). As John Yoo himself said last week: “Obama has adopted the same view of war powers as the Bush administration.”

Tortured, bad-faith constructions of authorization passed by past Congresses for different wars can’t hide that underlying reality. Obama may not be George W. Bush, but he’s doing a pretty decent imitation.

Clinton and Bush Introduce Leadership Program

Yesterday Bill Clinton and George W. Bush reportedly gushed “about each other’s leadership and acute decision-making skills.”  The two former presidents were launching a “joint program to train young leaders.”

According to the New York Times story, the audience was “packed with Bush and Clinton White House alumni.”  Oh, that explains all the laughter and backslapping.  The former presidents were confident that no one would ask them serious questions about their actions in office.  Here are a few questions that young leaders might consider asking the gentlemen before applying for their program:

Thank You, Mrs. Klose

Thank you for standing up for your right, and that of other Americans, not to be coerced: 

Lillian Gobitis Klose, who as a school-age member of the Jehovah’s Witnesses refused to salute the U.S. flag with her classmates, a controversial act of conscience that set off a legal tug of war in the 1930s and ’40s that ultimately bolstered the First Amendment right to religious expression, died Aug. 22 in Fayetteville, Ga. She was 90.

School officials in Minersville, Pa., where her parents ran a grocery store, expelled the young Ms. Gobitis for this act of defiance. But convinced that her Jehovah’s Witness faith forbade a public display of allegiance to a national symbol, she took the case all the way to the U.S. Supreme Court in 1940 – and lost, 8-1, with Justice Felix Frankfurter writing, sententiously, that “National unity is the basis of national security.”

Hers wasn’t a comfortable stand to take, especially with war looming, as the Washington Post’s obituary notes:

“It was a very scary time,” Mrs. Klose told the Atlanta Journal-Constitution. On one occasion, the Gobitis family was in a car when a mob attempted to flip it over. Another time, she told the Philadelphia Inquirer, the police chief parked his car outside her family’s grocery store to protect it from a threatened attack.

Especially with homeschooling rights virtually unrecognized at the time, Jehovah’s Witness youngsters were at risk of being sent to state reformatories, and their parents were at risk of prosecution for contributing to delinquency.  But by yielding no ground, Lillian Gobitis prepared the way for a victory just three years later, when in a case with similar facts, West Virginia State Board of Education v. Barnette, the high court reversed itself and in a 6-3 ruling upheld the right not to salute the flag or say the pledge. Justice Robert Jackson’s ringing pronouncement was to enter the constitutional canon: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  

It always did seem a bit hopeful for Jackson to pronounce that principle a “fixed star”; after all, the Court was reversing a contrary ruling from just three years previous. But the phrase was more accurate as prediction: the principle was to become a fixed star in constitutional jurisprudence, to the immense benefit of Americans and our liberty. Even in an era in which, ominously, some elected officials seek to roll back other First Amendment protections, there is little if any movement to reverse the flag and pledge decisions.

Well done, Lillian Gobitis Klose.

 

 

Police Misconduct — The Worst Case in August

Over at Cato’s Police Misconduct web site, we have identified the ‘worst case’ for August.

As you may have already guessed, it was the Ferguson Police Department. As the events in Ferguson played out during August, the police department there put on a clinic on how not to police a community.  From the withholding of Darren Wilson’s name (he was the officer who shot Michael Brown six times), to brandishing weapons of war against a community expressing its anger and mourning through protest, and blatantly targeting journalists for arrest and assault, the events in Ferguson have shown just how disastrous poor policing can be to a community.  If there is any silver lining to the situation, it is that people across the country have been presented with a good look at the consequences of when police misconduct goes unchecked and bad policies, like militarizing local police forces, are allowed to continue.  Things were bad enough in Ferguson for them to collectively qualify as the worst police misconduct of August, but the situation will be much worse if the lessons of Ferguson are not learned and the mistakes not corrected in the future—and not just in Ferguson, but in similar towns around the country.

This week, Cato will be hosting two events related to Ferguson.  More info on those here and here.

____________________________________________________________________

Finally, a not-so-’honorable mention’ goes to the Denver police officer who tried to get out of his DUI arrest by telling the arresting officer “Bro, I’m a cop.” That he would even attempt such a ploy tells us something about the police subculture–where too many law enforcement officers come to believe that they are above the law.  They aren’t, and the arresting officer did the right thing by getting a dangerous drunk driver off the streets—cop or not.

Cops and the Cash They Confiscate

Today the Washington Post is starting a series of articles entitled, “Stop and Seize,” which take a critical look at the power of the government to take cash away from people using civil asset forfeiture laws. Here are a few of the findings from the Post investigation:



  • There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800.

  • Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures.

  • Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.

  • Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005, three times the rate of other police departments. Desert Snow-trained officers reported more than $427 million in cash seizures during highway stops in just one five-year period, according to company officials. More than 25,000 police have belonged to Black Asphalt, company officials said.
Behind the numbers are real people and today’s article explains how these police practices impact their lives.  One of the victims mentioned is Mandrel Stuart:
Mandrel Stuart, a 35-year-old African American owner of a small barbecue restaurant in Staunton, Va., was stunned when police took $17,550 from him during a stop in 2012 for a minor traffic infraction on Interstate 66 in Fairfax. He rejected a settlement with the government for half of his money and demanded a jury trial. He eventually got his money back but lost his business because he didn’t have the cash to pay his overhead. “I paid taxes on that money. I worked for that money,” Stuart said. “Why should I give them my money?”
That’s a question that Cato has been asking policymakers for many years now.  In 1992, Cato published “American Forfeiture Law: When Property Owners Meet the Prosecutor.”  In 1995, Cato published, Forfeiting Our Property Rights: Is Your Property Safe from Seizure?, by the late Rep. Henry Hyde (R-IL).  In 1999, Cato held a conference titled, “Forfeiture Reform: Now, or Never?   More recently, in 2010, Cato hosted an event for the authors of Policing for Profit, a report from our friends at the Institute for Justice.  Over the years, in blog posts, op-eds, congressional testimony, radio interviews, and university lectures, Cato scholars have been defending the rights of people from forfeiture abuse.  

Are Democratic-Appointed Judges a Sure Thing for ACA?

Jason Millman of the Washington Post’s Wonkblog casually assumes that Democratic-appointed judges can be counted on to uphold the Affordable Care Act and its implementation against any legal challenge:

The Obama administration and supporters of the president’s health-care law are probably breathing a little easier this morning after some pretty big news from the U.S. Court of Appeals for the District of Columbia.

A few months after a three-member panel of the court ruled the federal government can’t provide insurance subsidies through federal-run exchanges in 36 states, the court on Thursday granted the Obama administration’s request for the entire panel to re-hear the case. The en banc hearing, as it’s known, wasn’t entirely unexpected—and with a heavy makeup of Democratic-appointed judges on the panel, it seems likely the administration will get a more favorable ruling when the entire court reconsiders the case later this year.

I don’t know. I know that Obamacare passed in both the House and Senate on straight party-line votes, over unanimous Republican opposition. But judges aren’t politicians. With a slew of Reagan- and Bush-appointed judges striking down gay marriage bans, I hope and expect that Democratic-appointed judges will show similar nonpartisan judiciousness when they consider the challenge to the IRS’s illegal implementation of insurance subsidies.