Topic: Law and Civil Liberties

More on the Moving Goalposts of FISA

I’ve noted before that the current FISA debate is an example of the goalposts being repeatedly shifted in the direction of ever more executive power and ever less executive oversight. Glenn Greenwald documents just how far the goalposts have been moved over the last 30 years. Back in 1978, the venerable conservative columnist William Safire wrote this of the newly-proposed Foreign Intelligence Surveillance Act:

Predictably, opponents of warrantless wiretapping cheered; the act seems to require a court warrant before tapping can begin. But nobody is reading the fine print, which adds up to the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.

Conservatives like to assist law enforcement, and to curtail espionage; we do not like to make it harder for “our side.” But this natural inclination to help the law must be outweighed by a responsibility to protect the law-abiding individual from the power of government to intrude. And this bill would turn every telephone instrument in every home into a suspected household spy.

Huey Long once said that if fascism ever came to America, it would come in Democratic form; in this bill, Big Brother is on the way, and he is cloaked in the mantle of civil liberties.

Since Safire wrote those words, FISA has been repeatedly amended to further reduce judicial oversight of eavesdropping, most importantly with the Patriot Act in October 2001. The law on the books in early 2006 was even more permissive than the legislation Safire is blasted as an assault on civil liberties. Yet the Bush administration has been so successful at shifting the terms of the debate that even a lot of self-described civil libertarians are conceding that FISA still places too many restrictions on domestic wiretapping activities. The debate is now between a House bill that further waters down judicial oversight over Americans’ international communications and a Senate bill that virtually eliminates judicial oversight of international calls.

One of the lessons here, I think, is that civil liberties won’t be preserved through compromise. The partisans of ever-increasing executive power aren’t likely to go away any time soon. If Congress compromises and agrees to further expand executive wiretapping powers, a future president will come back to Congress and argue that the law is still too restrictive and still more compromises are needed. President Clinton did it in the 1990s. President Bush is doing it now. At some point, Congress just has to say no.

Lies, Damned Lies, and FISA Polling

Newt Gingrich’s organization recently released a poll purporting to show that Americans overwhelmingly support renewing the Protect America Act. But as a blogger at the Economist painstakingly explains, the high levels of support might be because the poll blatantly misrepresented what’s at stake in the surveillance debate.

Amazingly, even the first four words of the story, “in July of 2007,” are inaccurate, as the Protect America Act was actually passed in August. And it only gets worse after that. Not surprisingly, if you repeatedly misrepresent the state of the FISA debate, it’s possible to get randomly sampled voters to come to the conclusion you’re looking for. I think it’s telling that they seem to believe this level of deception was necessary to get the result they were looking for.

In case you’re curious how voters respond to a less blatantly biased poll, 61 percent of voters believe that “the U.S. government should have to get a warrant from a court before wiretapping the conversations U.S. citizens have with people in other countries,” while only 35 percent believe that “the government should be able to wiretap such conversations without a warrant from a court.” Similarly, 31 percent of voters believe that “Congress should give the phone companies amnesty from legal action against the companies,” while 59 percent believe that “citizens who believe their rights have been violated should be free to take legal action against those phone companies and let the courts decide the outcome.” That poll is from the ACLU, so it may be worth taking with a grain of salt, but its questions are certainly more representative than those of Gingrich’s group.

Collins Still Working to Preserve REAL ID

No state will comply with the REAL ID Act’s requirement to begin issuing a national ID by the forthcoming statutory deadline, May 11th.

Because of that, the Department of Homeland Security is giving states deadline extensions just for the asking. Interestingly, it’s turning around and spinning the acceptance of those extensions as commitments to comply. Many of the states shown in green on this map have passed statutes outright refusing to implement the law. (For readers new to Planet Earth, the color green typically means “go.” Green is a strange choice of color for states that have legally barred themselves from issuing the DHS’s national ID.)

With her state — the first in the nation to pass anti–REAL ID legislation — considering refusing even the deadline extension, Sen. Susan Collins (R-ME) is once again working with DHS in support of the national ID law.

She has written a letter to the governor of her state, asking him to go ahead and take the waiver, playing into the DHS strategy. Followers of REAL ID know that delaying implementation helps a national ID go forward by giving the companies and organizations that sustain themselves on these kinds of projects time to shake the federal money tree and get this $11 billion surveillance mandate funded.

The cumulative profit margin of the airline industry is less than 1%. Should even a single state refuse to accept this national ID mandate, the airline industry, airport operators (faced with reconfiguring their operations), and travelers groups would be on the Hill in an instant. The Congress would have to revisit the issue.

Evidently, Senator Collins doesn’t want to risk the chance of an up-or-down vote on whether the United States should have a national ID. Her work behind the scenes in favor of REAL ID reveals where she stands.

One in 100: Behind Bars In America, 2008

A new report, One in 100, from the Pew Charitable Trusts is drawing attention to the remarkable growth in the U.S. prison population. The Washington Post reports: “With more than 2.3 million people behind bars, the United States leads the world in both the number and percentage of residents it incarcerates, leaving far-more-populous China a distant second.”

I do not think our prison population should be some function of the overall adult population in the United States. But, still, when the freest country in the world is locking up more people than a much more populous totalitarian state, policymakers ought to pause and ask themselves this question: Do so many Americans really need to be kept behind iron bars? I addressed that question in a Washington Post article a few years ago — just as our prison population was breaking the two-million-prisoner mark. The short answer is no. 

The subject is not that complicated. Social engineers thought that a ban on drug use would work. It has not. Federal and state drug laws are broken millions of times each and every month. The social engineers have tried increasing the penalties and stepping up enforcement in order to “send messages.” The courts and prisons are busier than ever, but the drug trade continues to thrive.  

When the prisons are overflowing in certain jurisdictions, the system starts backing up and the police will focus on the most violent offenders and only the “major drug traffickers.” In the jurisdictions where there is some extra prison bed space (such places are few and far between), the police can “crack down” on (low level) drug dealers and users. Given that reality, one must recognize the folly of the conservative policy prescription, which basically is: Let’s build some new prisons. The liberal policy prescription of “home monitoring” and “drug treatment” do not address the core problem. 

The costs of incarceration are keeping the most zealous drug warriors in check because they cannot persuade enough people to spend whatever it takes to enforce the law against the possession and ingestion of an arbitrary list of substances. The course we are now following is nothing but a series of stop-gap measures — i.e., the police will ignore some drug dealing, the judges will send more people into drug treatment (whether they need it or not), and the wardens will have the inmates set up cots and bunk beds in the cafeterias and exercise rooms at night. 

For additional Cato work on this subject, go here.

Don’t Make a Federal Case Out of It

Federal agents investigate, arrest, and prosecute local law enforcement agents on a fairly regular basis.  Unfortunately, state and local police rarely investigate, arrest, and prosecute federal agents.  I suspect the locals are just intimidated by the FBI, Secret Service, IRS, etc.  When something suspicious or questionable happens, the feds tell the locals something to the effect of “Back off.  We’ll handle this ourselves-internally.” 

So Arizona officials deserve some credit for pressing ahead and treating Border Patrol Agent Nicholas Corbett like any other suspect.  According to the local prosecutor, Corbett’s story does not hold up and sufficient evidence points toward his guilt.  If that is indeed the situation, this case should be simple: Prosecute.  The fact that the victim didn’t have a visa in his pocket does not matter.   It also does not matter that Corbett had a federal badge in his wallet.

The Arizona officials did mess up one important aspect of this caseWhy is this matter in federal court?  Well, I already know why because this typically happens in these rare circumstances when a federal agent is prosecuted.  The more precise question is: Why didn’t the Arizona officials object to the transfer to federal court?   One news story alludes to juror bias, but that does not hold up.  Where are the jurors in federal court coming from?  Rhode Island?  The issue isn’t really rural vs. big city either because, again, if you name any big city in Arizona, there are going to be Arizona courts there! 

The thinly veiled reason for the removal procedure is that the state process is supposedly rigged/biased against the federal agent.   Arizona officials should have recognized this and defended their justice system instead of just rolling over. 

Agent Corbett has a right to a trial – like any other person accused of a crime.  The point here is that he would have had the opportunity to argue self-defense in the Arizona state courts.  And if he is convicted but thinks his trial was unfair, he can appeal and try to persuade a higher court with specifics.  This case belongs in state court, not federal court.  

Candor With the Court

President Bush and Attorney General Michael Mukasey owe the Supreme Court an explanation.  Four years ago, one of Bush’s top lawyers, Solicitor General Paul Clement, told the Supreme Court that the administration did not use coercive methods on prisoners to extract information.  Given the recent admission by CIA Director Michael Hayden that three prisoners were waterboarded, we now know that the Supreme Court was misled.  If Mukasey hopes to get the Justice Department back on track, he must find out how this happened and take corrective action.

In the spring of 2004, the Bush administration was advancing its sweeping vision of executive power before the Supreme Court.  An American citizen, Jose Padilla, a suspected terrorist, had been arrested at Chicago’s O’Hare airport.  Padilla was then moved to a military brig where he was held in solitary confinement for two years.  The government refused to allow Padilla to meet with anyone, including his lawyer.  According to the Bush administration, once a prisoner is designated an “enemy combatant,” he loses the legal protections of the American Constitution—even if the prisoner is an American citizen arrested in the United States.  Because of the grave issues involved, the Supreme Court decided to hear Padilla’s constitutional objections and rule on the controversy.

Although the central issue in the Padilla case concerned the president’s power to imprison American citizens, the Supreme Court wanted to examine the breadth of the Bush administration’s legal claims.  Solicitor General Clement argued that America was at war and that the president, as commander-in-chief, could not have his military decisions “second-guessed” by the judiciary.  A pivotal moment in the Padilla oral argument came when Clement was asked about torture (pdf)(pp. 20-23).  Testing the limits of Clement’s logic, the Supreme Court justices wanted to know if there was any legal check on the executive power to coerce prisoners to obtain military intelligence.  Clement tried to talk around the question, but then a member of the Court asked this blunt question, “Suppose the executive says mild torture we think will help get this information.  It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command.  Some [foreign governments] do that to get information.”

This was supposed to be the moment of truth, but the White House representative faltered by saying, “Well, our executive doesn’t.”

That was doubletalk.  Four years later, the White House is telling a different story, albeit in dribs and drabs.  Waterboarding is not the same as water torture.  Only the CIA does it.  Only a few prisoners.

Clement could have said this to the Supreme Court, “Our Office of Legal Counsel has determined that the infliction of pain equivalent to organ failure is the legal limit.”  Or he could have said something similar to what Vice President Dick Cheney said recently—that the administration does have a tough program for “tough customers.”  Instead, Clement sought to assure the Supreme Court that there was no need to wrestle with such questions because even mild torture was beyond the pale to ”our executive.”  Satisfied with that answer, the Court moved on to other legal issues.

Professional legal obligations prohibit lawyers from making false statements of fact or law to a court.  And if a false statement is made, whether intentionally or by mistake, attorneys have an obligation to bring the error to the court’s attention even after the conclusion of the relevant proceeding.  As a former federal judge, Attorney General Mukasey must appreciate the importance of the legal rules requiring candor toward the courts.  Indeed, it was precisely that obligation that recently prompted Mukasey to initiate a criminal investigation into the CIA’s destruction of an interrogation videotape in another case.  That disclosure came to light when a Justice Department lawyer discovered the CIA’s action and took the appropriate corrective action by notifying a court of what transpired.  Keeping such facts from the court might have prevented the subsequent criminal inquiry and the negative publicity, but it would have violated the legal rules.

There is no evidence that the misrepresentation to the Supreme Court in the Padilla case regarding tough tactics against prisoners was deliberate—so this matter does not appear to warrant another special prosecutor or even an internal criminal inquiry.  But neither should this matter be permitted to slip by unnoticed.  Since the rule of candor toward the courts is unlikely to ever be openly attacked, it is imperative to defend this rule when we see it undermined—especially before the Supreme Court.    If the rule is worth preserving, and it is, it needs to be enforced.  At a minimum, Mukasey should officially inform the Supreme Court of the error.

The key point is this: Reasonable people can honestly disagree about what needs to be done about the threat posed by terrorists, but a conscientious discussion of our Constitution and laws must begin with a clear understanding of what our government is actually doing and what it is actually proposing to do next.