Topic: Law and Civil Liberties

What Do You Call the Ring in a Bull’s Nose? Perhaps “KST”?

While the country moves forward with increasing confidence in its ability to meet the security challenges posed by terrorism, the administration seems still utterly, utterly spellbound.

Take, for example, National Security Presidential Directive 59/Homeland Security Presidential Directive 24. Issued June 5th, it (take a breath … wait for it …) “establishes a framework to ensure that Federal executive departments and agencies … use mutually compatible methods and procedures in the collection, storage, use, analysis, and sharing of biometric and associated biographic and contextual information of individuals … .”

That means, roughly, “Let’s get our act together on biometrics and biometric surveillance, people!”

The directive uses a set of initials I hadn’t come across before: “KST.” This stands for “known and suspected terrorists.” As in, we’re going to “collect, store, use, analyze, and share biometrics to identify and screen KSTs and other persons who may pose a threat to national security.”

Now, to be clear, there are terrorists, and there may be some in the country - terrorist precursors, perhaps. But I don’t think there are enough of them, or enough danger from them, to merit awarding them their own initials. Even in acronym- and initial-happy Washington, D.C., these things are reserved for things of greater significance.

This reveals the thrall in which the administration is still held by terrorism. “We’re not up against a few small bands of sociopathic ideologues. No, we’re up against a movement with all the power of our ‘FBI’, ‘CIA’, ‘DoD’, and ‘DoJ’.”

I’ve posted here before about terrorism as a strategy, suggesting certain counter-strategic behaviors. Terrorists gain by drawing attention to themselves, wrapping themselves in the romance of rebellion, and being seen as legitimate rivals to their enemies. By dubbing the threat “KST,” the administration grants terrorists that legitimacy. It tells audiences ideologically and physically near terrorists that we’re still scared, which does terrorists a tremendous favor. (I, for one, am not scared; I’m embarrassed.)

On the merits, biometrics are occasionally necessary, but essentially impotent against the well-known technique of using “clean-skin” terrorists (see, e.g., 9/11, Oklahoma City). The NSPD/HSPD doesn’t appear to have a lot of substance other than to promote more ferment and federal spending on biometric surveillance technology.

Boumediene Ruling

The Supreme Court issued a very important ruling regarding the “Great Writ” of habeas corpus today.

Lengthy ruling … which I’m still studying, but the key line thus far is this: “The test for determining the scope of this [habeas] provision must not be subject to manipulation by those whose power it is designed to restrain.” George W. Bush and his lawyers purposely kept prisoners off of U.S. soil and argued that habeas was not available to non-citizens beyond U.S. territory (Gitmo).  Today, the Supreme Court rejected that claim.

More here and here.

Civil Liberties in Britain

David Davis, the shadow home secretary in the United Kingdom (that is, the prospective attorney general should the Conservative Party take power), has resigned his seat in the House of Commons to protest Parliament’s approval of a bill that would allow the government to hold terror suspects up to 42 days without charges.

Davis, generally regarded as a Thatcherite, said:

Until yesterday I took a view that what we did in the House of Commons representing our constituents was a noble endeavour because for centuries of forebears we defended the freedom of people. Well, we did, up until yesterday.

This Sunday is the anniversary of Magna Carta, a document that guarantees the fundamental element of British freedom, habeas corpus. The right not to be imprisoned by the state without charge or reason.

But yesterday this house allowed the state to lock up potentially innocent citizens for up to six weeks without charge.

He denounced the bill as “the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom” and went on to cite ID cards, “an assault on jury trials,” and “a DNA database bigger than any dictatorship has” as other elements of that erosion.

Davis said he would run in a special election to reclaim his seat by campaigning “against the slow strangulation of fundamental British freedoms by this government.” Observers expect him to win handily, as the Labour Party has fallen dramatically in the polls. But Conservative leader David Cameron has already appointed a new shadow home secretary, so Davis may have forfeited his leadership role.

I’m reminded of Phil Gramm, a Democratic congressman, who worked with President Reagan and the Republicans to cut taxes and spending in the early 1980s. When the Democratic leadership removed him from the Budget Committee, he switched to the Republican Party. Saying that the voters of his district should have the chance to decide whether they wanted a Republican representative, he resigned, ran in the special election as a Republican, was easily elected on Lincoln’s birthday, and the following year waltzed into the U.S. Senate.

Will Davis find such success by resigning and giving the voters a chance to assess his performance? Only time will tell… In the meantime, you can watch the video of his five-minute speech here.

E-Verify: What’s Going on with the 5.3%?

In a recent post on E-Verify, the system for conducting federal immigration background checks on American workers hired to new jobs, I criticized an assumption on the part of DHS Assistant Secretary for Policy Stewart Baker that the 5.3% of people who receive “final nonconfirmations” from the system are illegal immigrants:

Baker’s conclusion that the 5.3% of workers finally nonconfirmed are illegal workers is without support. The statistic just as easily could show that the 5.3% of law-abiding American-citizen workers are given tentative nonconfirmations, and they find it impossible to get them resolved. More likely, some were dismissed by employers, never informed that there was a problem with E-Verify; some didn’t have the paperwork, the time, or the skills to navigate the bureaucracy; and some were illegal workers who went in search of work elsewhere, including under the table.

Yesterday at a meeting of the DHS Data Privacy and Integrity Advisory Committee, a new data point opened a small window onto the situation of the 5.3%. To review, 94.2% of the workers submitted to the system are confirmed as eligible for work within 24 hours. Of the 5.8% tentatively nonconfirmed, .5% successfully contest their nonconfirmations, leaving us with 5.3% who receive final nonconfirmations for reasons yet unknown.

Staff of the DHS’ U.S. Citizenship and Immigration Services bureau reported yesterday that they had recently added a “doublecheck” on tentative nonconfirmations, asking employers to review the data they had entered for errors. During the two months this has been in place, it has lowered the tentative nonconfirmation rate by 30%. That’s right - 30% of the tentative nonconfirmations had been caused by employers’ fat fingers. (“Fat fingers” is not a knock on employers’ fitness - it’s a techie term for data entry errors.)

If we assume that the figures recited above are from a period before the new fat-finger doublecheck, the 5.8% tentative nonconfirmation rate should have dropped 1.74% since the double-check was implemented. Next, assume (generously) that all of the .5% successfully contesting their tentative nonconfirmations were part of this cohort - the victims of employers’ fat fingers. This leaves 1.24% of workers submitted to E-Verify during this period who were eligible to work but victims of employers’ data entry errors - and who failed to contest their nonconfirmations.

There is plenty of room for error in this extrapolation, and I’ll happily publish refinements or corrections to what I’ve written here, but it looks like more than 1 in 100 employees are tentatively nonconfirmed by E-Verify and go on to final nonconfirmation even though they are eligible to work under the immigration laws. That’s a huge percentage considering that millions of Americans’ employability is on the line. The burden is on DHS and other proponents of electronic employment eligibility verification to figure out what’s going on and to fix it.

E-Verify is not ready for prime time, and we wouldn’t want it even if it was.

Truth is Stranger Than Fiction Even in Hollywood

The LA Times yesterday revealed that Chief Judge Alex Kozinski of the Ninth Circuit, one of the highest-profile jurists this side of the Supreme Court, has stored various sorts of pornography (to put it mildly) on a publicly accessible website featuring sexually explicit photos and videos.  (The site is now down.)  Kozinski conceded in the LAT interview that some of the material was inappropriate, but defended other sexually explicit content as “funny.”  The story came out because – from the department of “you can’t make this up” – Kozinski was slated to preside over the obscenity trial of a filmmaker whose movies featured, among other things, bestiality and defecation.

Kozinski, who is a staunch defender of the First Amendment and generally a great friend of liberty, was assigned the case as part of a rotation in which he and other appellate judges occasionally “sit by designation” in the lower courts.  With the revelation of the judge’s own stash of materials that arguably parallel the defendant’s, we already hear demands that Kozinski recuse himself from this particular case.  Setting aside the merits of obscenity law and jurisprudence or even judging, as it were, Kozinski’s behavior, a reasonable argument can be made for recusal simply because the high-profile nature of the case, combined with the high-profile nature of this strange episode, can easily lead to an appearance of impropriety.  Heck, Supreme Court justices recuse themselves for much less – such as holding small amounts of stock in large corporations that would benefit from a given ruling.  (Then again, they also refuse to recuse themselves for what could be called more, like when Justice Scalia went duck-hunting with Vice President Cheney while a case involving the latter was pending before the Court.)

But that is where this should stop.  While Kozinski surely showed questionable judgment (and/or technological ineptitude – equally surprising given the judge’s penchant for video games and scholarly writings on intellectual property) in not keeping his collection of pictures and videos private, his performance on the bench has been nothing short of exemplary.  While Kozinski’s libertarian instincts at times flummox liberals and conservatives alike, and his colorful personality and writing style are unusual if not welcome in the often staid legal world, the man is a judge’s judge.

Because Kozinski typically shares Cato’s constitutional leanings (with a notable exception on the Fifth Amendment’s Takings Clause), I wrote about him here and here, after he took over the chief judge’s gavel in December of last year.  I concluded my articles thus:

Kozinski’s personal style may rub some of his colleagues the wrong way, but just maybe the court as a whole — so long derided as being out of step with the rest of the country — will, in better reflecting its new chief’s quirks, fall into line.

I clearly wasn’t talking about the sorts of quirks that we now see, but perhaps nothing should surprise us about those who practice law (or sit on the bench) in what many call the “Ninth Circus.”  Regardless of where this episode ends, it is a bizarre turn of events.