Topic: Law and Civil Liberties

Supreme Court Will Not Hear al-Marri Appeal

The Supreme Court previously granted certiorari to the appeal of Ali Saleh Kahlah al-Marri, the only enemy combatant taken into custody domestically and detained in a military brig. The Court of Appeals for the Fourth Circuit held that he could continue to be detained as an alleged al Qaeda operative without trial. The Supreme Court reversed its decision to hear the case today.

The Obama administration moved him back into the civilian criminal justice system, and denied that it was doing so to keep the lower domestic detainee precedent intact. It argued that denying review while vacating the Fourth Circuit’s decision would serve the ends of justice. Apparently, the Court agreed.

As I have said before, domestic counterterrorism is a law enforcement task, not a military one. The Washington Post and New York Times both wanted the Supreme Court to hear the case and rule that domestic detention is unconstitutional.

Obama’s actions seem to indicate either a lack of interest or a disagreement with the sweeping power claimed by President Bush, that presidents can simply whisk off any person in the U.S. — including citizens — to a military prison without a trial. But now that the Supreme Court has declined to rule on the executive’s claims in this case, we will not have the benefit of a Supreme Court precedent repudiating the executive’s overreach. Whether or not Obama tries to repeat what Bush did, another president will likely try to do it again. Not good.

John Walters on Drugs?

John Walters, former director of the White House Office of National Drug Control Policy, turns in a rambling and at times incoherent defense of the current war on drugs in today’s WSJ. There are many points worth picking apart, but this line of reasoning, loosely speaking, was my favorite:

What is the alternative to the progress we are making? We have made the kind of compromises with alcohol that some suggest making with illegal drugs…

Today there is terrible violence in Mexico…  The drug trade is a tool, not the cause of these violent criminal groups. Making it easier to produce and traffic drugs will strengthen, not weaken, these terrorists.

Right. Because we have all of these beer distributors and liquor-store owners running around the country kidnapping folks, killing judges, prosecutors, and journalist and generally terrorizing the populace.

I shudder to imagine the damage to our society were the illicit drug trade conducted in a strict regulatory framework reflective of our alcohol and medical supply distribution systems.

Good Coverage of AG Holder’s War on Guns

As I said earlier this week, Eric Holder’s push for an “assault weapons” ban is a misguided policy that will not have any serious impact on Mexican drug cartels.  It really ought to be called a “ban on semi-automatic firearms with politically incorrect cosmetic features,” but that doesn’t exactly roll off the tongue.  I am pleased to see that CNN is providing coverage of this that notes (1) the difference between semi-automatic sporting arms and machine guns and (2) that Mexican authorities are not releasing the serial numbers of firearms seized from the gangsters.  This is probably because many of these guns are coming from the Mexican government, not American gun stores.  The drug cartels are putting up billboards to recruit soldiers and policemen as hired muscle.  Don’t be surprised when they walk off the job with the guns you issued them, and don’t shift the blame to the Second Amendment.

The Continuing Puzzle: What is the Iranian Government Doing?

The Iranian government has detained another American journalist, Roxana Saberi of NPR.  I was waiting to post on this in the event that a concerted effort to free her got spun up, but I’m not seeing anything as yet, so I thought I’d just relate the news.

I met Ms. Saberi once.  We were both panelists at a discussion of Iran policy about two years ago, in front of a group of several hundred high school students who were on some sort of DC visit.  I found her to be reserved in manner, judicious in thought, and entirely unthreatening.  It is unfortunate that the Iranian government does not acknowledge this.

In any case, she should be freed immediately.  The Iranian government gets nothing from this sort of thing other than bad press, as it surely recognized when it pointlessly detained and ultimately released Haleh Esfandiari less than two years ago.  The Iranians may be using Saberi to wind up (or vent) nationalism in the advent of the June elections, but overall you’d think the Iranian government had more important matters to attend to.

Let her go.

UPDATE: I’m reminded that it isn’t just Saberi that the Iranians have detained. Two Iranian doctors working to prevent HIV have apparently been sent to prison on the grounds that they were “involved in provoking street demonstrations and ethnic unrest in different parts of the country.”You’d think if the Iranians were really concerned about ethnic unrest in different parts of their country, they’d refrain from doing things like having state-run newspapers publish cartoons representing Azeris as cockroaches.

Grand Juror Got Too Uppity

Peter Atherton was thrown off a grand jury for asking too many questions of the prosecutors.  Here’s an excerpt from Legal Times:

Back in 2001, fellow grand jurors quickly became irritated with Atherton, saying he was disruptive and was holding up the process with all of his questions about probable cause and burden of proof, according to court records.

It was Atherton’s first time on a grand jury when he showed up for service that April. He says he became concerned the jury was rushing through cases, indicting individuals without having a full understanding of the crimes.

Filing an indictment against someone is serious stuff.  The process should be slow and deliberative.  Alas, the old saw is that prosecutors can get grand juries to indict anything–even a ham sandwich.  Atherton’s experience lends support to that–skeptics who question authority apparently can’t be tolerated.   For a related case, go here.  For my primer about the grand jury process, go here.

Holder’s “Assault Weapons” Folly

Attorney General Eric Holder recently announced that the Obama administration will seek a new federal “assault weapons” ban.  This is an ill-advised policy that defies common sense.

The ban would be a revival of a law passed in the early years of the Clinton administration that expired in 2004.  The law prohibited the sale of newly-manufactured magazines holding more than ten rounds of ammunition and having two of five cosmetic features on semi-automatic rifles.  If you had a pistol grip and a detachable magazine, you couldn’t have a bayonet lug.  More recent proposals have attempted to ban “barrel shrouds,” which the rest of the world calls “handguards” - the place you put your hand (instead of on a hot barrel) to prevent burning it while firing.

The emphasis here is on the cosmetic - any rational discussion of the issue ought to note that an “assault weapon” is any object you use to assault someone with - and banning the presence of a bayonet lug on the barrel of a rifle is senseless.  Knives, tire irons, and bricks can all serve as “assault weapons.”  This is an instance where quotation marks are not just appropriate, they are required.

Much of the public support for the law was based on a warping of the issue by gun control proponents to make the public believe that these firearms are machine guns.  The fully automatic weapons that gun controllers use to push this agenda have been heavily regulated by the federal government since 1934 and not produced for civilian sale since 1986.  Don’t take my word for it - here’s Josh Sugarmann of the Violence Policy Center: “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons-anything that looks like a machine gun is assumed to be a machine gun-can only increase the chance of public support for restrictions on these weapons.”

This intentional distortion has moved from advocacy groups to the attorney general’s office.  Attorney General Eric Holder claims that the law is needed to counter Mexican Drug War violence, that American gun laws support “cartels employing automatic weapons and grenades.” Again, these devices are already illegal.  It is far more likely that these weapons of war are from Mexican Army troops who deserted their posts for the higher pay that drug kingpins offer.  The drug cartels have even taken the brazen step of setting up billboards meant to draw soldiers and police officers from their government jobs and into the drug trade.  My colleague Ted Galen Carpenter wrote the book on how to deal with this issue.  Holder’s War on Everything is not it.

It defies reason to think that multi-billion dollar criminal syndicates will not be able to get their hands on guns because of an American law banning cosmetic features and dictating lower magazine capacity.  If the Mexican government gets better control of its own armaments, the cartels will simply go to the black market and buy the guns.  Or make them.  Guns are hand-crafted in the frontier provinces of Pakistan, and there is no reason that the cartels could not do the same in a country with far more industrial know-how.  Three minutes of internet research will reveal plans to make fully automatic sub-machine guns, so enough capital to set up a machine shop and buy some sheet metal is all it would take.

The expired ban did not demonstrably impact crime anyway.  The Centers for Disease Control conducted a study in 2003 that found no reduction of crime attributable to the law.  This should come as no surprise, since most criminals’ weapons of choice are cheap, small caliber pistols.  They traditionally dominate the ATF’s top crime gun list.  There are some bad apples out there selling guns to people they know to be “straw buyers,” people who have clean records and re-sell the guns to those who don’t.  Prosecute them.  Enforce the existing laws before deciding to restrict the freedom of law-abiding citizens.

Predictably, both Harry Reid and Nancy Pelosi have temporarily quashed the issue.  Let’s hope they keep it out of the halls of Congress, and focus instead on a sensible drug policy that impacts the demand created by an illicit drug market.

Pelosi and Reid realize that this proposal will do is come back to haunt Democrats in the 2010 mid-term elections, which historically trend against the president’s party anyway.  Many Democrats attributed the flip of the House of Representatives to Republican hands in 1994 to the first “assault weapons” ban.  Numerous experts believe that the reason Al Gore could not carry his home state of Tennessee in the 2000 election was his push for broader gun control.  Blue Dog Democrats that ran on pro-gun platforms in conservative districts must be rolling their eyes.  The rest of the country should do so as well, and send this proposal to the dustbin.

UPDATE: Since I started writing this, the “ban guns for Mexico’s sake” narrative has taken on a drumbeat’s tempo.  60 Minutes did this piece echoing the gun ban crusade, and the Wall Street Journal published this.  Expect more of this nonsense.