Topic: Law and Civil Liberties

Further Thoughts on Clapper v. Amnesty International

By
Julian Sanchez

I posted a quick initial take Tuesday on the Supreme Court’s ruling in Clapper v. Amnesty International, mostly just noticing the intuitive problem with declaring laws authorizing large-scale covert surveillance effectively immune from constitutional review. The folks at EFF and the ACLU have already put out more extended responses to the ruling, but a few additional points seem worth making.

In the very first sentence of the ruling, Justice Alito subtly but importantly mischaracterizes the scope and nature of the “702 authority” created by the FISA Amendments Act in a way that persists throughout the majority opinion and distorts its analysis. According to Alito, §702 of the Foreign Intelligence Surveillance Act empowers the attorney general and director of national intelligence to authorize the surveillance of “individuals” outside the United States—including their communications with Americans, which previously required a warrant from the FISA Court. In some sense, of course, all surveillance is ultimately surveillance of individuals, but “authorizations” for programmatic surveillance under §702 do not need to specify individuals or facilities, but rather groups and (as the administration has put it) “categories of foreign intelligence targets,” where for FISA purposes, the “target” is the person or entity from or about whom the government seeks information.

The “targeting procedures” approved by the secret FISA Court must be designed to avoid intentionally collecting wholly domestic communications, but the statute doesn’t require that they guarantee the international communications collected under §702 programs will be narrowly limited to those of the actual targets. The FISA Court doesn’t have to review the particular phone lines or e-mail accounts or IP addresses that are collected from; those are selected after the procedures are approved, apparently with the aid of data mining and “link analysis” algorithms.

The public has no idea just how broad the initial collection is—the NSA has steadfastly refused to even estimate how many Americans’ communications are in their system—but everything we know about the program suggests they err on the side of breadth and figure out which of the intercepts actually pertain to their targets after collection. For example, a New York Times report on “overcollection” of domestic communications under §702, based on high-level intelligence sources, suggests that a single authorization typically covers surveillance on hundreds or thousands of phone lines and e-mail accounts, often in large “blocks.” As with all probabilistic reasoning, you need to know something about the background frequency or “prior probability” of an event—in this case, the scale of the National Security Agency interception program—before you can say anything intelligent about its likelihood in a specific instance.

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Topics: 
Law and Civil Liberties

UN Forced to Acknowledge Help to Mugabe

By
Marian L. Tupy

Four years ago, I wrote in the Wall Street Journal about a courageous United Nations whistleblower named Georges Tadonki. In 2008, Tadonki correctly predicted an outbreak of cholera in Zimbabwe. The epidemic, which killed 4,000 people, and an annual hyperinflation of 90 sextillion percent, were the results of Robert Mugabe’s drive to nationalize Zimbabwe’s commercial farms. Unfortunately, the UN bureaucracy, which was much more interested in appeasing Mugabe than helping his long-suffering people, threatened to fire Tadonki because of the revelation.

Congratulations to Bob Amsterdam, a friend of Cato and a human rights lawyer who defended, among others, Mikhail Khodorkovsky in Russia, for his recent win of Tadonki’s case before a UN tribunal.

Topics: 
International Economics and Development, Law and Civil Liberties

DOMA Unconstitutionally Denies Federal Benefits to Legally Married Same-Sex Couples

By
Ilya Shapiro

Enshrined in the U.S. Constitution and an integral element of democratic self-governance generally is the fundamental right of all people to be treated equally by their government—to receive “equality under the law” in both procedure and substance. Yet at least one important federal law, with cascading effects on many others, denies that equal protection on the basis of sexual orientation: The Defense of Marriage Act, signed into law by President Clinton in 1996, contains a provision, Section 3, that defines “marriage” in all federal statutes as a legal union between one man and one woman. 

This definitional detail affects more than 1000 federal provisions, from tax returns and veterans’ benefits, to Social Security and health care, to housing and immigration. That is, federal law views lawfully married same-sex couples (who were married in one of the states or countries that recognizes these unions) differently from lawfully married opposite-sex couples. 

Aside from treating individuals adversely on the basis of their sexual orientation, Section 3 also imposes discriminatory costs on all sorts of private employers and contractors, due to the complex operation of federal employee benefits law—to give just one example of DOMA’s reach.

Another example comes in tax law: Edith Windsor, the plaintiff in a case against DOMA that will soon be heard by the U.S. Supreme Court, had been in a loving, committed relationship with Thea Spyer for 42 years when they legally married in Canada in 2007.  When Spyer passed away in 2009, Windsor not only had to deal with the grief of losing her partner, but was forced to pay federal estate taxes totaling $363,053 because Section 3 prevents the IRS from recognizing Windsor as a surviving spouse. When Windsor sued to get her money back, two lower federal courts found Section 3 unconstitutional and ordered the requested tax refund.

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Topics: 
Law and Civil Liberties

DNA and Doctrine in the Supreme Court

By
Jim Harper

This week, the Supreme Court considered whether collecting DNA from an arrestee was an unreasonable Fourth Amendment search.

Or at least that would have been a good way for the Court to frame the question.

Instead, much of the oral argument in Maryland v. King dealt with the question whether swabbing the cheek of an arrestee to take a DNA sample upsets one’s reasonable expectations of privacy. The “reasonable expectation of privacy” test is doctrine that arose from Justice Harlan’s concurrence in Katz v. United States. The test asks whether a person claiming the Fourth Amendment’s protections had a subjective expectation of privacy and whether it is “one that society is prepared to recognize as ‘reasonable.’”

The government’s case rests on that framing, which is why Deputy Solicitor General Michael Dreeben began his argument by saying that arrestees are “on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual’s expectation of privacy.”

It’s true that an arrestee has his privacy and other liberties invaded various ways. What problem is it if a bit of DNA is collected at the same time? It’s pretty much like finger printing, the argument goes…

The “reasonable expectation” test is almost never faithfully followed by courts. My guess is that the Court will not assess whether King himself actually expected “privacy.” That would encompass everything from believing that none of his mucus membranes would be collected by a government agent, to believing that his genetic material would neither be analyzed nor preserved in a Maryland lab for further analysis somewhere in an uncertain future.

When it applies the objective part of the test, there is a chance, but I’ll be surprised if any justice actually examines the difference in experience between fingerprinting and DNA collection, such as by comparing the slim privacy invasion when one person touches another’s hands to the real invasion that occurs when a person puts something in another person’s mouth. Doing so in its exercise of free-form interest balancing could, but probably wouldn’t, overcome the government’s interest in using “the fingerprinting of the 21st Century” to catch crooks.

Rather than using doctrine and making policy judgments, the Court should assess the government’s actions as the Fourth Amendment commands. The law does not invite the Court to examinine what people may or may not think about “privacy.” It bars the government from committing unreasonable searches and seizures.

If one examines the case guided by the words of the Fourth Amendment, what happened is far more clear. Taking a bodily specimen from Alonzo King was, in natural language, a seizure. Processing that specimen to create an identity profile was a further examination, bringing otherwise concealed information into law enforcement’s view. And comparing King’s identity profile to cold-case profiles was incontrovertibly looking for something. This is all searching using that seized bodily material.

Now, was the search reasonable?

Having been picked up on a variety of assault charges, King’s mouth was swabbed and his DNA taken, processed, and used to investigate whether genetic material matching his was associated with any other cases. It’s the equivalent of taking keys on the person of an arrestee and looking through his house for evidence of other crimes. There was no relationship between King’s alleged wrongdoing and the investigation conducted using his DNA.

Perhaps it is reasonable to conduct a free-form search into the biography of a person who has been arrested–that is, a person about which a law enforcement officer says he has probable cause to arrest–but it is unlikely. The Fourth Amendment’s particularity requirement suggests that it is unreasonable to investigate a person arrested for one crime to see what other, unrelated crimes he may have committed.

Counsel for the State of Maryland rested her argument heavily on the use of information about other crimes in bail decisions. This falls apart under the same logic, unless the Court is going to produce a rule that the Fourth Amendment allows the government carte blanche to search and seize when a bail hearing is pending. And the DNA results came back months after Alonzo King’s arraignment.

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

“Equality Under the Law” Requires State-Sanctioned Marriage to Be Available to Same-Sex Couples

By
Ilya Shapiro

The idea of equality under the law dates back to the foundations of democracy and the ancient Greek word “isonomia.” “Equal justice under law” remains so essential today that it is engraved in the cornice of the Supreme Court building.

In 1868, Congress and the states codified this important ideal into the Equal Protection Clause of the Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As the text and history of the Fourteenth Amendment plainly show, the Equal Protection Clause guarantees to all persons — regardless of race, sex, or any other group characteristics — equality under the law, including the legal right to marry the person of one’s choosing.

In 2008, however, California voters passed Proposition 8, a ballot initiative reversing a California Supreme Court ruling that had authorized same-sex marriage and restricting the right to marry to opposite-sex couples only. Both the federal district court and the Ninth Circuit Court of Appeals ruled that Prop. 8 was unconstitutional, for reasons ranging from the violation of a fundamental right to the impropriety of removing rights/benefits once granted.

With the case, Hollingsworth v. Perry, now before the U.S. Supreme Court, the Cato Institute has joined the Constitutional Accountability Center (CAC) on an amicus brief that focuses on supporting marriage equality under the Equal Protection Clause. Our brief explains that the purpose of the Fourteenth Amendment was not exclusively to address the disparaged rights of former slaves but, as the historical record shows, was intended to be universal in its protection of “any person” within U.S. jurisdiction.

The broad and sweeping guarantee of legal equality was understood at the time to secure and protect the equal rights of all individuals, so as to prohibit arbitrary and invidious discrimination. The framers of the Fourteenth Amendment understood marriage to be a personal, individual right that, when established by a state, must be made available on an equal basis to all.

Moreover, the Constitution also protects fundamental rights against state infringement under the substantive liberty provisions of the Fourteenth Amendment. Decades of Supreme Court cases protecting the equal right to marry — without regard to race, being behind on child support payments, or even imprisonment — have been rooted in both the Equal Protection Clause’s guarantee of equality under the law and the Fourteenth Amendment’s broader liberty protections, which converge in securing for all persons an equal right to marry.

Prop. 8 denies gays and lesbians the liberty to marry the person of their own choosing, places a badge of inferiority on same-sex couples’ loving relationships and family life (with the full authority of the state behind it), and perpetrates an impermissible injury to these individuals’ personal dignity. It thus directly subverts the principle of equality at the heart of the Fourteenth Amendment, and is an affront to the inalienable right to pursue one’s own happiness that has guided our nation since its founding.

We urge the Supreme Court, which will hear Perry on March 26, to invalidate Prop. 8 as a violation of the foundational guarantee that all persons shall have equality under the law.

See also my op-ed with CAC’s Doug Kendall, which further explains our reasoning – and stay tuned for another joint brief tomorrow in United States v. Windsor, the Defense of Marriage Act case also on the Court’s docket this term.

Topics: 
Government and Politics, Law and Civil Liberties

ObamaCare Debate Challenge: Lawrence Wasden Edition

By
Michael F. Cannon

Congress empowered states to block major provisions of ObamaCare, including its subsidies and employer mandate. All states need do to is refuse to create a health insurance “exchange.” (And a whopping 34 states, accounting for two-thirds of the U.S. population, have done just that.)

Supporters of the law are doing their level best to deny what the law says. It has now been one full month since I challenged anyone and everyone to debate with me the powers Congress gave states to block these and other parts of the law. My debate-challenge video (embedded below) has nearly 3,000 views on YouTube. And how many brave ObamaCare supporters have accepted my challenge? Zero.

The latest to deny what the law says is Idaho Attorney General Lawrence Wasden, who has issued an opinion that Congress did not give Idaho these powers. So I hereby issue my challenge directly to Wasden, or any member of his staff, or his entire staff: I say you are misreading the law, and doing Idaho legislators, employers, and taxpayers a great disservice. So let’s have a debate over whether Congress allows Idaho to block ObamaCare’s employer mandate, and whether you are accurately portraying the law to Idaho legislators. 

An ObamaCare Debate Challenge (Michael F. Cannon)

Update: Washington & Lee University law professor Timothy Jost protests that he debated this issue with both Jonathan Adler and me back in October 2012. True enough, Jost is the only person who has agreed to debate this issue with us live. Here’s the video of that debate. Decide for yourself who bested whom. I meant my “zero” count to be prospective, and would be happy to debate Jost again.

Topics: 
General, Government and Politics, Health Care, Law and Civil Liberties

Gabelli v. SEC: Fairness Wins, 9-0

By
Walter Olson

Congress has provided that most federal agencies filing civil enforcement actions for penalties, fines or forfeitures must act within five years of the accrual of the government’s “claim,” which generally means within five years of the challenged conduct. In Gabelli et al. v. Securities and Exchange Commission, the Supreme Court considered the issue of whether the SEC could file claims of fraud against an investment adviser after this deadline had passed on the argument that it had not discovered the violation until more recently. Courts sometimes apply a “discovery rule” of this sort to keep alive otherwise-lapsed securities claims by investors and other private parties alleging fraud.  

The Cato Institute weighed in with a November amicus brief in support of the petitioner-defendants. As we noted then: 

Statutes of limitations exist for good reason: Over time, evidence can be corrupted or disappear, memories fade, and companies dispose of records. Moreover, people want to get on with their lives and not have legal battles from their past come up unexpectedly. Plaintiffs thus have a responsibility to bring charges within a reasonable time of injury so that the justice system can operate efficiently and effectively — and that is doubly so when the would-be plaintiff is the government, with all its tools for investigation and enforcement. …

[After noting strong historical reasons to read the statute as excluding a discovery rule] …even if courts could alter rather than merely interpret the meaning of statutes, there’s no basis for creating a discovery rule for government enforcement actions. Government agencies with broad investigatory powers — indeed, whose purpose is to monitor regulatory compliance — don’t face the same difficulty as private plaintiffs in identifying causes of action which give rise to the discovery rule. Adding a discovery rule to § 2462 would create an indefinite threat of government lawsuits and invite agencies to review decades of past conduct of selectively disfavored companies and individuals — inevitably chilling innocent and valuable economic activity. To preserve individual liberty in the face of an ever-burgeoning regulatory state and ensure constitutional separation of powers, we urge the Court to reverse the Second Circuit’s decision and hold that no discovery rule applies in Gabelli v. SEC.

I’m happy to report that yesterday by a unanimous 9-0 vote the Supreme Court agreed with this view. Chief Justice John Roberts’s reasoning, as summarized by Robert Anello at Forbes, takes note that the rationale for the “discovery rule” exception is to aid private fraud victims who are often unsophisticated, without means of investigating fraud, and seek simply to be made whole as opposed to punishing an opponent.  

This is not true of government agencies like the SEC, however.  Indeed, the agency’s “central ‘mission’” is to investigate and root out violations of the securities laws and it “has many legal tools at hand to aid in that pursuit.”  Because it is always on the lookout for fraud, the agency does not need the benefit of the doubt afforded by the discovery rule.

Further, unlike a private party who is seeking money to compensate them for injuries sustained as a result of the fraud, the SEC seeks to inflict penalties on a defendant.  As stated by the Court, the outcome of an SEC action is “intended to punish, and label defendants wrongdoers.”  Allowing the SEC to rely on the discovery rule would “leave defendants exposed” to such punishment “not only for five years after their misdeeds, but for an additional uncertain period in the future.”  The Court concluded by noting that the types of changes proposed by the SEC could only be made with congressional approval.

Because the five year limitation period also applies to other government agencies in other contexts, the Court’s decision is tremendously important. 

A federal agency armed with the power to seek quasi-criminal penalties over stale claims – perhaps even claims from decades earlier – is an agency with too much discretionary power.

Topics: 
Finance, Banking & Monetary Policy, Law and Civil Liberties

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