Topic: Law and Civil Liberties

Law and Order

The Virginia Supreme Court “reined in police searches yesterday, overturning convictions in two 2005 drug cases in which the court said police had conducted searches based on vague suspicions.” L. Steven Emmert, a Virginia lawyer-blogger, told the Washington Post he wasn’t surprised: “While Virginia is still one of the law-and-order states, the Supreme Court is very respective of Bill of Rights types of cases.”

I think “while” is the wrong conjunction in that sentence. Maybe it should be “Because Virginia is still one of the law-and-order states, the Supreme Court is very respective of Bill of Rights types of cases.”

“Law and order” is a phrase often used to imply “tough on crime” policies, perhaps suggesting harsh legal penalties harshly applied. Wikipedia notes, “The expression also sometimes carries the implication of arbitrary or unnecessary law enforcement, or excessive use of police powers.”

But law and order are necessary for the flourishing of human life. Advocates of liberty and limited government should not concede the concept of “law and order” to those who engage in “excessive use of police powers.” Those who actually believe in law and order would hold police and prosecutors, as well as criminal suspects, to the rule of law; and that seems to be what the Virginia Supreme Court did. So here’s to justices who understand that “law and order” and “the Bill of Rights” are allies, not enemies.

McCain on Judges

Cato scholars have increasingly been evaluating the respective policies of John McCain, Hillary Clinton, and Barack Obama. The trade shop understandably prefers McCain (see my colleague Sallie James’s new paper), as does, cautiously, our director of health and welfare studies, Michael Tanner. The foreign policy shop, meanwhile, doesn’t like McCain because he is ”wedded to perpetual war” and generally given to neoconservative tendencies.

On judges, I’ll go with the trade and health care folks: While John McCain’s views on  the First Amendment are unacceptable to freedom-lovers of any stripe, he has at least promised to nominate Supreme Court justices in the mold of John Roberts and Sam Alito (who have ruled against campaign finance restrictions). Obama and Clinton, meanwhile, are in the John Paul Stevens camp of relying on empathy, international opinion, and “my own experience” as a basis for constitutional interpretation.

Indeed, while defending his vote against Chief Justice Roberts’s confirmation, Obama explained that his standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

As Jonah Goldberg says in a devastating column, “Now that is a pure expression of the principle of judicial fiat.”

Supreme Court justices take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.” Any contention that justices must tilt toward any particular type of party — the downtrodden (or privileged), the politically unpopular (or popular), the ethnic minority (or majority) — is an argument for judicial dictatorship instead of the rule of law.

As Roberts said when Senator Richard Durbin (D-IL) asked him whether he would be “for the little guy,” if the law says the little guy wins, then the little guy should win — and if the law says the big guy wins, then it would be a miscarriage of justice to rule for the little guy. And those who don’t like that result should complain to their elected officials and get the law changed.

Go Communists! Defend Freedom!

Responding to concerns over ultra-thin models in fashion magazines and advertisements, the French National Assembly has approved legislation that would make the promotion of extreme dieting a crime punishable by up to two years in jail.

France is not alone in its paternalist concern for young women lured into “unrealistic standards of beauty” by the fashion industry.

Spain has banned models with less than a specified body mass index. Last year, Italy barred girls under 16 from its runways and started requiring all models to present health certificates proving they do not suffer from eating disorders. New laws in Britain require models with anorexia or bulimia to prove they are being treated for the disorders before they can participate in London Fashion Week this September.

Some fashion editors objected to the bill. And there were a few opponents in the Assembly:

Most of the left-wing opposition deputies abstained on the vote, with some calling it repressive. “Criminalizing behaviour has no place in public health policy,” said Jacqueline Fraysse, a Communist Party lawmaker.

Vive la France, a country where the Communists denounce the un-libertarian policies of conservative President Nicolas Sarkozy, whose party voted unanimously for the bill.

Prosecutorial Power

Good editorial in the Wall Street Journal yesterday regarding the dismissal of Joseph P. Brandon. 

The piece notes how federal prosecutors are able to pressure CEOs like Warren Buffett to throw certain executives overboard in order to avoid a dubious federal indictment. Cato adjunct scholar John Hasnas is quoted in the piece, noting that companies will do almost anything to avoid the accusation that they are being “uncooperative.” Hasnas is the author of the Cato book Trapped, which shows how the government is increasingly coercing business executives to take unethical actions — such as discharging employees who have done nothing wrong.

More here.

Obama’s (Mostly) Irreconcilable Positions

I was pleased a couple of months ago to point out where presidential candidate Senator Barack Obama (D-IL) had distinguished himself and gotten it right on whether driver licensing should be linked to immigration status. The use of driver licensing for immigration enforcement is a major impetus behind the national ID system that our country should rightly avoid.

Such pleasures don’t last. The senator published an opinion piece in the Charlotte Observer this week calling for a “mandatory electronic system that enables employers to verify the legal status of their employees within days of hiring them.”

It is very hard to hold both positions. As I pointed out in my recent paper on electronic employment verification, it is nearly impossible to “strengthen” internal enforcement of immigration law through EEV without creating a national identification system:

[T]he things necessary to make a system like this really impervious to forgery and fraud would convert it from an identity system into a cradle-to-grave biometric tracking system. Almost no way exists to do national EEV that is not a step down that road.

Perhaps Senator Obama would implement an EEV system with a federally issued national ID card rather than the driver licensing system. (That’s not a good option either.) Perhaps he’s devised a credentialing system that allows people to prove eligibility to work under current immigration law without a national ID. (Such things are possible.) Most likely, the senator has expressed two pretty much irreconcilable positions.

Supreme Court to Nation: Happy Tax Day!

In a fit of either highly coincidental timing or good humor, the Supreme Court today released opinions in two tax cases. In MeadWestvaco Corp. v. Illinois Department of Revenue, the Court limited the power of states to tax the money that a company based in another state earns when it sells off an investment in a division involved in a separate line of business. In U.S. v. Clintwood Elkhorn Mining Co., the Court decided that a taxpayer seeking a refund for an invalid tax under the Constitution’s Export Clause must seek a refund from the government before bringing a lawsuit.

So the taxpayers went 1-1 today, but the cases were both technical and not worth getting into. Perhaps the only interesting thing about them – aside from this whole Tax Day thing – is that they were both unanimous. This technicality and unanimity could be further evidence of Chief Justice Roberts trying to steer the Court to take on less high-profile (typically business) cases, with narrow issues that prevent the fractured 5-4 decision-making that make the Court seem more political than it really is (or should be).

Dispatch from the ASIL Annual Conference III

Some wrap-up notes from the ASIL conference that concluded on Saturday:

1. The second panel I attended Thursday covered the very timely “Civil Liberties in Times of Crisis.” Air Force Colonel Morris Davis – who resigned as chief prosecutor at Guantanamo – opened with a criticism of the military tribunals as unworkable; he agreed that terrorism detainees held in Gitmo (let alone Iraq) don’t have constitutional rights, but the politicization of the process has delegitimized what should be an open, transparent, and efficient processing of enemy combatants. Covington & Burling partner David Remes, who has represented many of the detainees, called for simply applying the criminal justice paradigm to international terrorists (as with the blind sheik after the first WTC bombing and with Timothy McVeigh). Hofstra’s Julian Ku continued that line by supporting the extension of constitutional rights to foreigners and applying international law domestically. Human Rights First’s Elisa Massimino called for the U.S. to be a shining city upon a hill (my characterization, certainly not her words) in terms of being an example on human rights – and linked American political power to its respect for international law.

Then came Q & A, which as it happened centered mostly on a very short question that I asked: Is there a difference between national security and law enforcement, and if there is what are the consequences for the handling of detainees suspected of being terrorists? Col. Davis said that national security is the correct paradigm but that the military commissions have been poorly executed by political appointees. David Remes, to his credit, explained that the real difference between national security and criminal justice is one of policy, and it is not up to the courts to make those kinds of decisions.

My view: I agree with Davis that national security courts (along the lines proposed by Jack Goldsmith and Neal Katyal) are the only way to go in this world of post-modern asymmetrical warfare. National security and law enforcement are different governmental functions, and to conflate the two (like John Kerry did in 2004) or to suggest that constitutional rights apply to everyone everywhere (but international law is supreme in the U.S.) is to throw out the most basic understandings of political theory.

2. On Friday I attended a very interesting panel on the Economic Security and the Committee on Foreign Investment in the U.S. (the latest reform of which I wrote about here). On CFIUS, everyone seems satisfied with the latest reform (which increased openness and aims to prevent political blow-ups like Dubai PortsWorld) and is comfortable with handling of Sovereign Wealth Funds, which Dan Ikenson and Jim Dorn have written about recently. [Also, note that last week Canada’s equivalent of CFIUS blocked a foreign acquisition for the first time time ever. The purchasing company was from… the US! The Canadian company is a leading satellite reconnaissance developer (e.g., sees through clouds and ice, apparently finding oil/mineral deposits in the Arctic).

3. I also attended a hugely overcrowded – people spilled out into the hallway, and I ended up sitting on the floor beside the panelists’ table – panel on “Restoring Rule of Law in Post-Conflict and Stabilization Operations.” I’ve written about these issues before in the context of Iraq, and this panel mainly provided anecdotes about Liberia, Sierra Leone, and Bosnia. A young British researcher also proposed international trusteeships as a useful mechanism (a la the old – or not so old, see Kosovo – UN protectorates). A difficult set of issues, not least because of questions over the legitimacy of outside intervention, how to achieve post-conflict justice and social reconciliation, and how to advise a legal system without being seen as imposing foreign values.

4. The final events I attended were a roundtable discussion by various foreign ministries’ legal advisers and an address by Zalmay Khalilzad, the U.S. ambassador to the U.N. Both of these were disappointing in that all these people are learned and experienced but didn’t really have anything new to say. If only John Bolton were up there…