Topic: Law and Civil Liberties

U.S. Aid Empowering Organized Crime in Mexico

Two weeks ago I had an article in The National Interest where I made the case against the Obama administration’s proposal to deliver hundreds of millions of dollars in aid to Central American governments to help them fight organized crime, promote security and foster economic development. In my piece, I wrote that “…giving $1 billion to governments with dubious records on transparency and human rights will empower corrupt officials to the detriment of ordinary Central Americans.”

Last week, Jesse Franzblau had a revealing exposé in The Nation that proves how counterproductive this sort of aid can be. In his article, Franzblau publishes unclassified documents that show how U.S. authorities continued to deliver millions of dollars in aid to Mexican security agencies despite knowing that those same forces were infiltrated by drug cartels. This money came under the auspices of the Plan Mérida, a $2.6 billion program aimed at helping Mexico fight drug cartels. In some instances, the documents seem to show efforts by U.S. officials to cover up or downplay serious human rights abuses committed by Mexican security forces so it wouldn’t affect the continuity of Plan Mérida.

As Franzblau points out:

While US laws explicitly prohibit the delivery of aid to foreign individuals and units implicated in systematic human rights violations, internal reporting on the implementation of Mérida programs reveals that institutional connections to organized crime are consistently overlooked, ignored or kept hidden from public scrutiny as counter-drug money continues to flow.

This is serious stuff. Instead of helping the fight against drug cartels, U.S. aid might be empowering them. As I mentioned in my article, there is well-documented evidence about how the security agencies and judicial systems of Central American countries have been infiltrated by powerful criminal organizations, from drug cartels to youth gangs.

Franzblau’s article also shows a well-documented phenomenon regarding aid: once it starts flowing, the bureaucracy in charge of delivering it has an incentive to disregard the evidence of whether it is accomplishing its goals or being counterproductive since discontinuing the aid would compromise the bureaucracy’s own existence. In this particular case, Franzblau mentions that “US officials were well aware of the effect that reports of abuse could have on Mérida assistance.”

There is no reason to believe that the Obama administration’s massive aid plan for Central American governments won’t suffer from the same flaws that Jesse Franzblau exposes in his article.

17 Errors & Omissions in Vox’s Otherwise Excellent History of King v. Burwell

This week, the Supreme Court will hear oral arguments in King v. Burwell, one of four legal challenges to an IRS regulation that purports to implement the Patient Protection and Affordable Care Act, but in fact vastly expands the IRS’s powers beyond the limits imposed by the Act. Just in time for oral arguments before the Court, Vox’s Sarah Kliff has produced what I think may be the best history of King v. Burwell and related cases I’ve seen. Still, there are a few important errors and omissions, listed here in rough order of importance.

Boris Nemtsov, RIP

The murder of Boris Nemtsov in the immediate proximity of the Kremlin seems to be an important milestone in Russia’s descent into darkness. As Deputy Prime Minister in the late 1990s and as an opposition politician during the era of Vladimir Putin, Mr. Nemtsov was a voice for a more liberal, open, and democratic Russia.

Notwithstanding a certain degree of restraint in his criticism of the Russian government, his work as one of the central figures of Russian opposition reflected great personal courage. In spite of a history of frequent arrests, in the past year, he positioned himself as an important domestic critic of Russia’s war against Ukraine.

He was not a stranger to free market ideas or to the work of the Cato Institute, which has been trying to support the transition of Soviet Russia to markets since its landmark 1990 Moscow conference, Transition to Freedom: The New Soviet Challenge.  One decade later, Mr. Nemtsov spoke at a Cato conference on the privatization of pension systems around the world.

The circumstances of Mr. Nemtsov’s death are extremely disconcerting, especially in the light of the track record of Mr. Putin’s regime. Mr. Nemtsov was killed two days before the planned demonstration against Mr. Putin’s war against Ukraine. He feared for his life as he was preparing to publish new evidence on the presence of Russian troops in Eastern Ukraine. And the ‘investigation’ of his murder started on Friday night, with the police ransacking his apartment and confiscating his documents and hard drives.

Mr. Putin’s facetious promise that he will “personally oversee the investigation” strongly suggests we will never learn the names of Mr. Nemtsov’s murderers. But it is safe to say that a country in which opposition politicians of Mr. Nemtsov’s stature have to fear for their lives is a on a very dismal path.

Casualties of the Drug War

Yesterday, the international aid organization Health Poverty Action released a new study on the effects of the global drug war. The report is entitled, “Casualties of War: How the War on Drugs Is Harming the World’s Poorest.”

From its introduction:

Since the mid-twentieth century, global drug policy has been dominated by strict prohibition, which tries to force people to stop possessing, using and producing drugs by making them illegal.

This approach, which has come to be known as the ‘War on Drugs’, has not only failed to achieve its goals—it is fuelling poverty, undermining health, and failing some of the poorest and most marginalised communities worldwide.

Both in the United States and around the world, the War on Drugs has been a humanitarian catastrophe and a financial money pit. Interdiction often harms indigent farmers who grow the coca and poppy plants for meager financial return while the global drug marketplace continues to meet high demand. Prohibition-fueled violence among rival cartels and gangs invariably spills over to claim innocent lives. For those reasons, it is no exaggeration to say that the $100 billion spent on global drug prohibition annually takes food off the tables of the poor and leaves many more dead from violence.

Well-meaning people can disagree about what is best to spend that $100 billion on—vaccines, food aid, micro-loans, infrastructure, clean water projects, drug treatment, etc.—but a growing number of people would say it would be better spent not fighting the Drug War.

Read the whole report here.

Missouri Bill Would Keep Most Police Camera Footage From Public View

One week after it was reported that Ferguson, Missouri police officer Darren Wilson would not be indicted for killing of Michael Brown, President Obama announced that the federal government would spend $75 million on police body cameras. Wilson was not wearing a body camera when he shot Brown at least six times, and some have reasonably suggested that if Wilson had been wearing a body camera during his interaction with Brown that it would have been easier to determine if Brown’s killing was a justified or unjustified use of force.

Police in Missouri were in the news again after recently released dash camera footage revealed that an officer warned colleagues who were arresting a suspect that the camera was live before it was suddenly turned off. Both Brown’s killing in August and the footage of the April 2014 arrest highlight not only the fact that body cameras would provide investigators looking into allegations of police misconduct with valuable evidence, but also that there needs to be clear policies in place that relate to police and the cameras they use.

One lawmaker in Missouri proposed legislation that would make law enforcement camera footage policy clearer, but it should worry anyone concerned with law enforcement accountability and transparency.

Missouri State Senator Doug Libla introduced SB 331 at the end of last month. The bill would exempt footage captured by police cameras (whether attached to uniforms or vehicles) from public record requests except “upon order of a court in the course of a criminal investigation or prosecution or civil litigation.”

Libla’s bill would also ban lawmakers from requiring that law enforcement officers wear body cameras.

Taxpayers deserve to know how the police officers they fund behave. Yet Libla’s proposed legislation would make it prohibitively difficult for members of the public to view footage of police officers doing their job. Under Libla’s proposal, footage of serious police misconduct could be released by court order during an investigation.

However, if implemented, the legislation would mean that in cases in which a victim of police abuse or misconduct is unwilling or unable to sue or press criminal charges, the relevant body camera footage would not be made public. Suing the government is an expensive and time-consuming endeavor with no guarantee of success. Many people who live paycheck to paycheck simply cannot afford a lawyer’s retainer for several thousand dollars to just get into the courtroom to ask for the video to be released.  

Quiet Change Expands ATF Power to Seize Property

A quick glance at the Federal Register (Vol. 80, No. 37, p. 9987-88) today reveals that Attorney General Eric Holder, who earned cautious praise last month for a small reform to the federal equitable sharing program, has now delegated authority to the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to seize and “administratively forfeit” property involved in suspected drug offenses.  Holder temporarily delegated this authority to the ATF on a trial basis in 2013, and today made the delegation permanent while lauding the ATF for seizing more than $19.3 million from Americans during the trial period.

Historically, when the ATF uncovered contraband subject to forfeiture under drug statutes, it was required to either refer the property to the DEA for administrative forfeiture proceedings or to a U.S. Attorney in order to initiate a judicial forfeiture action.  Under today’s change, the ATF will now be authorized to seize property related to alleged drug offenses and initiate administrative forfeiture proceedings all on its own.

The DOJ claims this rule change doesn’t affect individual rights (and was thus exempt from the notice and comment requirements of the Administrative Procedure Act) and that the change is simply an effort to streamline the federal government’s forfeiture process.  Those who now stand more likely to have their property taken without even a criminal charge may beg to differ.

Further, the department claims that forcing the ATF to go through a judicial process in order to seize property requires too much time and money.  Whereas an “uncontested administrative forfeiture can be perfected in 60-90 days for minimal cost […] the costs associated with judicial forfeiture can amount to hundreds or thousands of dollars and the judicial process generally can take anywhere from 6 months to years.”  In other words, affording judicial process to Americans suspected of engaging in criminal activity takes too long and costs too much. 

SCOTUS to Government: Somethin’ Fishy ‘Bout Your Prosecution

This morning the Supreme Court ruled in Yates v. United States that Sarbanes-Oxley—the massive legislation prompted by the accounting scandals of the early 2000s—can’t be used to prosecute a fisherman who caught undersized grouper.  It makes eminent intuitive sense. Luckily, it’s also correct as a matter of statutory interpretation. That is, even though the relevant provision (Section 1519) punishes those who would knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation, Justice Ginsburg is correct in writing for the plurality that “it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses [objects not] used to record or preserve information.”

And Justice Alito, in a narrow concurrence that ultimately controls the case, is even more correct to apply traditional canons of statutory construction—the rules that guide judges in interpreting laws—and thereby find that “tangible object,” in the context of the list of nouns that are Sarbanes-Oxley’s target, refers to “something similar to records or documents.” In a colorful opinion rife with salamanders, crocodiles, and oil derricks, Alito asks the correct question: “How does one make a false entry on a fish?”

As Cato wrote in our brief, words such as “record” and “document” modify the term “tangible object” to include things like hard drives and floppy disks (remember those?), not grouper. Moreover, an all-encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. And the broader context of Sarbanes-Oxley illuminates the relevant meaning here: The Act focuses on financial fraud in the context of companies, not fauna. Thus, the words “tangible object” should be read differently in Sarbanes-Oxley than they would be in, say, the Federal Rules of Criminal Procedure.

If the term “tangible object” were read as broadly as the government wished, it could criminalize an unfathomable range of activities, from throwing away cigarette butts to washing away footprints in the sand. It wouldn’t provide adequate notice about potential legal violations, to which individuals have a right to so they can plan their actions accordingly and avoid getting caught in government nets.

After all, prosecutors and law enforcement officials can’t arbitrarily expand the range of criminal offenses as if they themselves were fishermen, exaggerating the size of their catches to a credulous legal system.