Topic: Law and Civil Liberties

Property Rights and Free Speech

Dave Roland at the Show-Me Institute discusses an important case on free speech and property rights:

Tomorrow morning, the Eighth Circuit Court of Appeals will hear arguments in a rather unusual case. Jim Roos graduated from Concordia Seminary in 1970 and eventually founded Sanctuary in the Ordinary, a unique sort of ministry that provides ultra-low-income housing for those who would otherwise have nowhere to go, and tries to teach tenants some of the basics about living as part of a neighborhood. Roos renovated a number of properties in the McRee Town neighborhood, which later came to be targeted for redevelopment by the city of St. Louis. When it became clear that the city intended to use eminent domain to tear down the buildings that Roos’ ministry was trying to use for good, he painted a huge sign on one of them calling for an end to eminent domain abuse.

As it turns out, the city — and especially the Land Clearance Redevelopment Authority (LCRA) — didn’t much care for the criticism. The government cited Roos for illegally displaying a sign without a permit. Even though his right to free speech means that the city had no proper authority to require Roos to seek their permission to express his opinion about eminent domain, Roos complied with the city’s directive and applied for a permit. The LCRA persuaded the city’s Building and Inspection (B&I) Division to deny the permit, because Roos had not first gotten the LCRA’s permission to file the application. When Roos then sought the LCRA’s permission to pursue a sign permit, the LCRA denied his request. With the help of the Institute for Justice, Roos sued to enforce his constitutional rights to free speech.

I wrote about Roos’s ordeals with eminent domain abuse last year in my study for the Show-Me Institute about eminent domain abuse in Missouri.

Defeating Terrorism Without Terrorizing Ourselves

I recently finished reading Michael Sheehan’s new book Crush the Cell: How to Defeat Terrorism Without Terrorizing Ourselves. It jibes with much of what I think about terrorism and terrorism counterstrategy, but there’s more than that to recommend it.

Sheehan has extensive, on-the-ground experience in counterterrorism operations and policy in the federal government, in the military, at the UN, and in New York City, where he did the work that he is obviously the most proud of. The book overflows with recollections and opinions from someone who has been working on fighting terrorism for many years. This focus almost guarantees differences of opinion with someone like me, whose focus is limited government and protection of liberty, but the differences are profitable to explore.

For example, Ben Friedman and I both credited the recent Rolling Stone article arguing that domestic terrorism threats are overblown. Much derision has been poured on domestic terror threats like the “Lackawanna Six” and their obvious incompetence. But Sheehan has a different take:

The case of the Lackawanna Six is an interesting one. To some, these were just some suburban boys who were wanna-be jihadists—certainly not terrorists. But let’s take a closer look. Six young men who grew up in Lackawanna, New York, a small town outside of Buffalo, were inspired to form an al Qaeda cell by a man named Kamal Derwish in the spring of 2001… . All six went to Afghanistan and attended the al Qaeda camps, where they met bin Laden and were very much aware of his responsibility for the East African bombings and that of the USS Cole.

Derwish, a proven fighter and recruiter, was meanwhile sent on to advanced training. While he was gone, it appears that the others’ enthusiasm waned. They returned to the United States, while Derwish, upon completion of his higher training, went back to Yemen. In Yemen, Derwish found himself in the wrong place at the wrong time… . No one knows what that cell might have become if Derwish had returned to the United States to organize them. But these were not the innocent travelers that they’ve been portrayed by some to be.

A good point, and the foundation of Sheehan’s theme: crush the cell. Relative incompetents like the Lackawanna Six and the “muscle hijackers” of 9/11 can be pretty dangerous when activated by a well-trained leader like Mohammed Atta. An essential part of counterterrorism is to crush the cell before they reach that stage.

How do you do that? Sheehan has lots to say about how not to:

Soon after 9/11, the National Counterterrorism Center (NCTC) was created, and a new building was constructed a few miles down the road from the CIA to house its staff. But that wasn’t enough. Later, Congress created the position of Director of National Intelligence (DNI), whose staff was charged with supervising and integrating all other intelligence-gathering agencies: more bureaucracy to manage the swollen intelligence monolith. It was a classic Washington solution to a problem: create a new agency, hire more bureaucrats, and increasingly outsource the work to contractors.

The cost of these new organizations is absolutely staggering, but I’ve yet to see how they’ve appreciably helped the so-called war on terror.

Instead of all this bureaucracy, Sheehan argues for focused intelligence work, about which he has a lot of stories and information to share. There are gems (and a few lumps of coal) throughout the book.

Insight into the economics of security shines through, for example, when he tells the story of the intense inspection his rental car gets at the entrance to the Marine Annex near the Pentagon, comparing it to the Sheraton across the street:

[S]ince 9/11, the military has had an almost unlimited budget … . The Pentagon cites the targeting of U.S. military facilities as the reason for tight security. But hotels have been attacked by terrorists around the world as well, and at least as often as U.S. military bases. But because the hotel has to pay for its own protection, security there is almost nil.

From the coal department, Sheehan casually endorses a national ID card, saying it would “go a long way in controlling who we allow in our midst.” His is not the only good, insightful book on counterterrorism I’ve read that throws in a pro-national ID sentiment at the back end. I think that, given time to do it, folks who recognize the futility of inspecting every shipping container or patrolling every inch of our land and sea borders would recognize the same dynamics at play in trying to use a national ID system for security against terrorism.

But that difference and differences on signals intelligence and eavesdropping are things to work on and discuss as we join in defeating a key product of the terrorism strategy: self-injurious overreaction. Time and again in his book Sheehan emphasizes the importance of avoiding fear and overreaction while crushing terror cells. This is a notion about which lifelong security people and advocates for limited government can speak in unison.

North Carolina: REAL ID Implementation on Hold

North Carolina is not one of the states that has joined the REAL ID Rebellion. By all accounts, it was plodding along, getting ready to implement the federal government’s national ID mandate.

But now comes news that the changes North Carolina had planned are on hold. “ ‘The Real ID Act is pretty much at a standstill nationwide,’ said Marge Howell, a spokeswoman for the Division of Motor Vehicles,” according to one report:

As a means of complying with the federal Real ID Act, the state DMV had planned on implementing a requirement that people who apply for a new or renewed driver’s license start producing documentation showing the motorist’s proof of identity and legal address beginning Dec. 1. That has now been delayed.

Another change, set to begin on July 1, requires the DMV to mail a motorist’s license to a residential address instead of instantly issuing a license. Howell said that program won’t go into effect statewide at the beginning of July. Instead, the DMV plans to phase that program in.

Even the compliant states are getting the message that REAL ID is a non-starter.

I recently queried whether one of the largest companies producing driver’s licenses would continue to agitate for the national ID law or embrace a diverse, competitive identification and credentialing marketplace.

Civil Liberties and Business

The Washington Legal Foundation has just published a Special Report: Federal Erosion of Business Civil Liberties (pdf).  Looks like a comprehensive analysis of the ongoing trend at the federal level to criminalize ordinary business activity. 

Check out this admission from the SEC’s Paul Atkins: “What is astonishing is that the attorney-client privilege, one of the foundational rights on which rests Anglo-American legal culture … should now be under siege.  The two federal agencies that have been most vigorous in seeking waiver of the attorney-client privilege have been the Department of Justice and – unfortunately, I must say – the Securities and Exchange Commission.”  Well, admitting the problem is the first step toward addressing the problem.  But notice the way he makes his agency appear uncontrollable.  It’s a fairly common tactic here in the capital.  Senators talk about “runaway spending” as if the federal budget was on some sort of auto-pilot.  And then they name highways and buildings after themselves to memorialize their “public service” and “leadership.”

When the status quo becomes politically unacceptable, Congress ought to abolish corporate welfare and restore the attorney-client privilege and other legal safeguards.

Related Cato work here and here.

ID Checks are About Control, Not Security

If there was ever any doubt that ID checks at airports are about control and not security, the Transportation Security Administration is clearing that up. Starting June 21, it says, “passengers that willfully refuse to provide identification at security checkpoint [sic] will be denied access to the secure area of airports.”

The claim is that this initiative is “the latest in a series designed to facilitate travel for legitimate passengers while enhancing the agency’s risk-based focus - on people, not things.” So let’s take a moment to look at how refusing airport access to the willful enhances security.

… OK! We’re done!

No terrorist or criminal would draw attention to him or herself by obstinately refusing an ID check. This is only done by the small coterie of civil libertarians and security experts who can’t stand the security pantomime that is airport identification checking. The rest of the people traveling without ID have lost theirs - and TSA officials at airports have no way of knowing which is which.

This new rule will do nothing to improve airport security, but watch for the incident when a TSA agent “doesn’t believe” someone who has truly lost his or her driver’s license and tries to strand a traveler in a faraway city.

A Free Market Gem in Guatemala

The L.A. Times has a very fine article today on Francisco Marroquín University, Guatemala’s libertarian institution of higher learning, and its founder, Manuel “Muso” Ayau.

Those of us who have visited UFM can testify as to the passion for liberty that fills the place. It’s certainly a free market gem in the midst of Central America.

Swire on Cybercrime Underenforcement

Peter Swire of the Center for American Progress has a paper out called “No Cop on the Beat: Underenforcement in E-Commerce and Cybercrime.” He identifies how local law enforcement lacks the ability and incentive to address various wrongs done on the Internet because of their complexity and their multi-jurisdictional nature.

Swire has identified a real problem. Just like everyone else, law enforcement struggles to keep up in the changing online environment. And it’s true that local law enforcement lacks incentive to expend efforts going after a distant cybercrime ring for the benefit of one local complainant and thousands of strangers.

(He calls this a “commons problem” and I understand how he means it to illustrate that law enforcement personnel and organizations are economic actors. Crime victims are a sort of public good to those organizations and they can’t enjoy the benefits of caring for most of those who would benefit from their work. I think this fits more neatly in the public choice box: local law enforcement in one jurisdiction doesn’t get any benefit — budgetary, political, or otherwise — from helping strangers, so they’re less inclined to do so.)

Swire’s conclusion is that there should be more federal law enforcement — such as by the Federal Trade Commission and the the Justice Department — or “federated” law enforcement, combining state and federal authorities: “A more federated approach recognizes the usefulness of enforcement task forces that draw on multiple jurisdictions. Federal‐state task forces, for instance, have been used widely for drug prosecutions and, more recently, in fighting terrorism.”

While these are logical conclusions, I would be reluctant to call for greater federal law enforcement. There isn’t authority for it in the Constitution, and the uses of “federated” law enforcement he identifies — in the “War on Drugs” and the “War on Terror“ — have not been shining examples we ought to follow.

I suspect that Swire would class this as an objection he calls “We Don’t Want Enforcement,” of which he identifies two strains. One is the extent to which some of these “harms” are worthy of enforcement. This is a strong objection, not so much to Swire’s thesis, but to a second one that’s implicit. Swire is not just calling for federal or federated law enforcement aimed at protecting the public from violations of their rights (which manifest themselves as legally cognizable “harms”); he’s classing all kinds of mischief as “harms” to dramatically broaden the sweep of the federal law enforcement task.

Consider this strange circumlocution: “The focus here is on online fraud, malicious software, and other harms that are carried out through the Internet.” In the world of natural language “harms” are “caused,” not “carried out.” Malicious software is “distributed” or “propagated,” not “carried out.” Fraud and malicious software often cause harm, but sometimes do not.

Classing malicious software as a “harm” would make it actionable in the abstract, such as through prescriptive software regulation. If this is what he’s talking about, Swire should surface it and talk about it rather than wedging bad behavior with potential harmful results into the term “harm.” (He’s not alone — see this post and the resulting comments discussing whether increased exposure to risk is a “harm.”)

A second strain of the “We Don’t Want Enforcement” objection is a melange of privacy concerns that Swire would address with due process and privacy rules.

A third strain (with some relation to the privacy concern) emerges from the “commons”/public choice dynamic that Swire identified so astutely as part of the cause of the problem. Bureaucracies and their members are economic actors, and a greater federal law enforcement regime would naturally begin to seek greater powers from the moment it came into existence. This is very much at play in the “wars” on drugs and terror, where federal law enforcement agencies seek much more to promote their institutional interests in growth than the safety, freedom, and prosperity of the people. “We Don’t Want Federal Bureaucracies Doing Law Enforcement” is a much stronger objection than Swire recognizes.

My main concern, though, sounds in moral hazard. Should a federal law enforcement apparatus emerge too early, or occupy fields where it is not absolutely essential, people and organizations that should be responsible for their own security will shunt that responsibility off to the government. Supine and seemingly incompetent, they will fall victim to many crimes and harms that they would otherwise have defended themselves against.

I often analogize the development of security in the online environment to security in the offline environment. Imagine if you were building streets, houses, and buildings from scratch, never having seen such things before. It would take some time to recognize the value of doors, windows, and walls in preventing crime. When you’ve got that window in place, you also need to close the latch, etc.

An alternative to all this distributed learning is to post law enforcement on every corner of every street, or in front of every house. But having a cop on every corner is expensive and hard to administer. There’s risk of corruption, and laziness, and so on. The best security is provided by the most interested actors, and I’d be loathe to have federal law enforcement communicate that there is anyone more responsible than software companies, online service providers, payment systems, and individuals for securing the online environment.

There is some role for the federal government in preventing and detecting multi-jurisdictional and international crimes. I wouldn’t rush to embrace it, or to class a broad array of behaviors as “harms” so that the federal law enforcement role mushrooms into an ineffective and costly “War on Cybercrime.”