Topic: Law and Civil Liberties

Events This Week

kennedy-bookMonday, March 23, 2009

BOOK FORUM- The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty
12:00 PM (Luncheon to Follow)
The Cato Institute

Author Helen Knowles examines how Kennedy’s background as a law student and classroom teacher has influenced his judicial philosophy. The book begins by examining Kennedy’s judicial thought in the context of libertarian thought. Knowles does not call the justice a libertarian. Instead, in a sympathetic but not uncritical analysis, she uses libertarian philosophy, focusing on privacy, race, and speech cases, to draw out Kennedy’s views about limited government and individual liberty. Please join us for a discussion of Justice Kennedy’s “modest libertarianism,” with comments by one of the nation’s foremost constitutional scholars, Professor Randy Barnett.

Watch live online here.

CAPITOL HILL BRIEFING- Tax Havens Should Be Celebrated, Not Persecuted
12:00 PM (Lunch Included)
B-340 Rayburn House Office Building

Join Cato scholar Dan Mitchell and former member of the Cayman Islands Monetary Authority Richard Rahn to review the myths and realities about the role of tax havens in the global economy.

Tuesday, March 24, 2009

POLICY FORUM- Georgia’s Liberal Institutions In the Wake of War and the Global Economic Crisis
12:00 PM (Luncheon to Follow)
The Cato Institute

Featuring David Bakradze, Speaker of the Georgian Parliament; Kakha Bendukidze, Former Minister of the Economy and Reform Coordination, Georgia; and Andrei Illarionov, Senior Fellow, Center for Global Liberty and Prosperity, Cato Institute.

Register to attend or watch live online here.

The Price of the Drug War

Critics of the drug war long have pointed out how criminalizing drug use creates crime.  America has been through this experience before, with Prohibition.  Just look at Prohibition-era Chicago with pervasive corruption and mob warfare.

Unfortunately, the experience is being repeated in Mexico.  And the violence is spilling over the border into the U.S.  Reports the New York Times:

Sgt. David Azuelo stepped gingerly over the specks of blood on the floor, took note of the bullet hole through the bedroom skylight, raised an eyebrow at the lack of furniture in the ranch-style house and turned to his squad of detectives investigating one of the latest home invasions in this southern Arizona city.

A 21-year-old man had been pistol-whipped throughout the house, the gun discharging at one point, as the attackers demanded money, the victim reported. His wife had been bathing their 3-month-old son when the intruders arrived.

“At least they didn’t put the gun in the baby’s mouth like we’ve seen before,” Sergeant Azuelo said. That same afternoon this month, his squad was called to the scene of another home invasion, one involving the abduction of a 14-year-old boy.

This city, an hour’s drive north of the Mexican border, is coping with a wave of drug crime the police suspect is tied to the bloody battles between Mexico’s drug cartels and the efforts to stamp them out.

Since officials here formed a special squad last year to deal with home invasions, they have counted more than 200 of them, with more than three-quarters linked to the drug trade. In one case, the intruders burst into the wrong house, shooting and injuring a woman watching television on her couch. In another, in a nearby suburb, a man the police described as a drug dealer was taken from his home at gunpoint and is still missing.

Tucson is hardly alone in feeling the impact of Mexico’s drug cartels and their trade. In the past few years, the cartels and other drug trafficking organizations have extended their reach across the United States and into Canada. Law enforcement authorities say they believe traffickers distributing the cartels’ marijuana, cocaine, heroin, methamphetamine and other drugs are responsible for a rash of shootings in Vancouver, British Columbia, kidnappings in Phoenix, brutal assaults in Birmingham, Ala., and much more.

United States law enforcement officials have identified 230 cities, including Anchorage, Atlanta, Boston and Billings, Mont., where Mexican cartels and their affiliates “maintain drug distribution networks or supply drugs to distributors,” as a Justice Department report put it in December. The figure rose from 100 cities reported three years earlier, though Justice Department officials said that may be because of better data collection methods as well as the spread of the organizations.

Washington officials want to believe that throwing more money at the Mexican government will solve the problem.  But there’s nothing in the experience of Afghanistan, Colombia, or many other drug production and smuggling centers to suggest that more enforcement, especially by a government as weak as that in Mexico City, will end the drug trade.

Only taking money out of drug production and sales will end the violence.  And that means no longer treating what is fundamentally a health and moral problem as a criminal problem.  Legalizing adult drug use may not be a great solution, but it would be a vast improvement over drug prohibition, which promotes violent crime while tens of millions of Americans still use illicit substances.

DHS Officials Skirt Open Meeting Laws to Promote REAL ID

There’s not much chance that U.S. Department of Homeland Security officials went to Annapolis to argue against having Maryland implement the national ID law. Maryland’s Gazette reports:

Federal homeland security officials skirted open meetings laws at a briefing last week on the state’s efforts to comply with the federal Real ID Act, unsettling several lawmakers in an era of heightened government transparency.

A meeting with the Maryland House Judiciary Committee members and other lawmakers was carefully regulated to avoid reaching a quorum so open meeting rules could be avoided.

Something is funny in the state of Maryland, and something is funny at the DHS, to insist on holding closed meetings about REAL ID during what President Obama promised would be the most open and transparent administration in history.

Napolitano revealed early this month that she has been collaborating with the National Governors Association on REAL ID. Just what they plan also remains a secret.

As governor of Arizona, she signed legislation to resist REAL ID, but politicians that come to Washington have a tremendous capacity to go native and start working to build federal power. There’s even precedent for them working with the NGA to do it.

The Problem of Guantanamo

The Constitution obviously does not leave Americans helpless in fighting against those who wish them ill.  But it also sets standards of conduct that should not – indeed, cannot – be carelessly tossed aside.

The prison at Guantanamo Bay has become such an international symbol of the U.S. abandoning its principles because it reflects an anti-terrorism policy gone badly awry.  First, the Bush administration was both callous and careless in imprisoning people, even paying unreliable tribal allies for captives.  Second, the U.S. government created no effective and objective truth-determining process to assess guilt.  Third, Washington employed torture, violating both domestic and international law.

No doubt dangerous terrorists have been incarcerated at Gitmo.  But so too have many innocent people.  Indeed, the claims of former State Department Chief of Staff Larry Wilkerson are particularly sobering:

Lawrence B. Wilkerson, the former chief of staff to Secretary of State Colin Powell, admitted today that of the approximately 800 detainees held at Guantanamo Bay since the controversial detention center opened, only “two dozen or so” were actually terrorists. Wilkerson told the Associated Press today that “there are still innocent people there,” and that “some have been there six or seven years.”

Wilkerson made other comments earlier in the week in an internet posting entitled “Some Truths About Guantanamo Bay.” In that posting he said that “several in the US leadership became aware of the lack of proper vetting very early on and thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.”

Wilkerson also claimed that then-Secretary Powell and Richard Armitage were pressuring for the repatriation of as many detainees as possible, and that former Defense Secretary Donald Rumsfeld and Vice President Dick Cheney were unphased by the fact that “among the detainees was a 13 year old boy and a man over 90,” standing in opposition to returning detainees.

Even if Wilkerson exaggerates–and he has been a credible witness so far–he points to the price America has paid for failing to live up to its principles.  The U.S. has locked up many who were neither terrorists nor otherwise dangerous.  Doing so undoubtedly has helped turn some people in and out of Gitmo towards violence against America.  And mistreating the innocent has badly sullied America’s reputation as a shining city upon a hill.

Confronting terrorism will never be easy.  But violating America’s principles is no way to defend the America in which we all claim to believe.

Week in Review: Bailout Bonuses, Marijuana and Eminent Domain Abuse

House Approves 90 Percent ‘Bonus Tax’

Sparked by outrage over the bonus checks paid out to AIG executives, the House approved a measure Thursday that would impose a 90 percent tax on employee bonuses for companies that receive more than $5 billion in federal bailout funds.

Chris Edwards, Cato’s director of tax policy studies, says the outrage over AIG is misplaced:

While Congress has been busy with this particular inquisition, the Federal Reserve is moving ahead with a new plan to shower the economy with a massive $1.2 trillion cash infusion — an amount 7,200 times greater than the $165 million of AIG retention bonuses.

So members of Congress should be grabbing their pitchforks and heading down to the Fed building, not lynching AIG financial managers, most of whom were not the ones behind the company’s failures.

Cato executive vice president David Boaz says this type of selective taxation is a form of tyranny:

The rule of law requires that like people be treated alike and that people know what the law is so that they can plan their lives in accord with the law. In this case, a law is being passed to impose taxes on a particular, politically unpopular group. That is a tyrannical abuse of Congress’s powers.

On a related note,  Cato senior fellow Richard W. Rahn defended the use of tax havens in a recent Wall Street Journal op-ed, saying the practice will only become more prevalent as taxes increase in the United States:

U.S. companies are being forced to move elsewhere to remain internationally competitive because we have one of the world’s highest corporate tax rates. And many economists, including Nobel Laureate Robert Lucas, have argued that the single best thing we can do to improve economic performance and job creation is to eliminate multiple taxes on capital gains, interest and dividends. Income is already taxed once, before it is invested, whether here or abroad; taxing it a second time as a capital gain only discourages investment and growth.

Obama to Stop Raids on State Marijuana Distributors

Attorney General Eric Holder announced this week that the president would end federal raids on medical marijuana dispensaries that were common under the Bush administration.

It’s about time, says Tim Lynch, director of Cato’s Project on Criminal Justice:

The Bush administration’s scorched-earth approach to the enforcement of federal marijuana laws was a grotesque misallocation of law enforcement resources. The U.S. government has a limited number of law enforcement personnel, and when a unit is assigned to conduct surveillance on a California hospice, that unit is necessarily neglecting leads in other cases that possibly involve more violent criminal elements.

The Cato Institute hosted a forum Tuesday in which panelists debated the politics and science of medical marijuana. In a Cato daily podcast, Dr. Donald Abrams explains the promise of marijuana as medicine.

Cato Links

• A new video tells the troubling story of Susette Kelo, whose legal battle with the city of New London, Conn., brought about one of the most controversial Supreme Court rulings in many years. The court ruled that Kelo’s home and the homes of her neighbors could be taken by the government and given over to a private developer based on the mere prospect that the new use for her property could generate more tax revenue or jobs. As it happens, the space where Kelo’s house and others once stood is still an empty dustbowl generating zero economic impact for the town.

• Daniel J. Ikenson, associate director of Cato’s Center for Trade Policy Studies, explains why the recent news about increasing protectionism will be short-lived.

• Writing in the Huffington Post, Cato foreign plicy analyst Malou Innocent says Americans should ignore Dick Cheney’s recent attempt to burnish the Bush administration’s tarnished legacy.

• Reserve your spot at Cato University 2009: “Economic Crisis, War, and the Rise of the State.”

Republicans Rediscover Their Big-Government Principles

Sen. Chuck Grassley, who can always be counted on to stick the federal government’s nose where it doesn’t belong, is criticizing Attorney General Eric Holder’s teeny-tiny steps toward a less oppressive enforcement of drug prohibition. Holder said on Wednesday “that federal agents will target marijuana distributors only when they violate both federal and state law. This is a departure from policy under the Bush administration, which targeted dispensaries under federal law even if they complied with the state’s law allowing sales of medical marijuana.”

Grassley says that marijuana is a “gateway” drug to the use of harder drugs and that Holder “is not doing health care reform any good.”

As Tim Lynch and I wrote in the Cato Handbook for Policymakers:

President Bush … has spoken of the importance of the constitutional principle of federalism. Shortly after his inauguration, Bush said, “I’m going to make respect for federalism a priority in this administration.” Unfortunately, the president’s actions have not matched his words. Federal police agents and prosecutors continue to raid medical marijuana clubs in California and Arizona.

And as Justice Clarence Thomas wrote in dissenting from the Supreme Court’s decision to uphold the power of the federal government to regulate medical marijuana:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.

That’s the principle that Chuck Grassley defends. Republicans claim to be the small-government party — and President Obama’s policies on taxes, spending, and regulation certainly justify a view that the GOP is, if not a small-government party, at least the smaller-government party — but they forget those principles when it comes to imposing their social values through federal force.

Selective Taxation Is Tyranny

The House of Representatives has passed a 90 percent tax on the bonuses paid to AIG employees, seemingly forgetting President Obama’s admonition “that in a time of crisis, we cannot afford to govern out of anger, or yield to the politics of the moment.”

Everybody’s angry. But anger doesn’t make good law. And there are real questions about both the wisdom and the legality of such legislation. Bloggers like Conor Clarke, Megan McArdle, and Eugene Volokh have asked if the bonus tax is legal or constitutional. And thank goodness for bloggers who ask the questions that members of Congress and print journalists seem to ignore!

The bloggers wonder if after-the-fact taxes on specific people violate the constitutional ban on bills of attainder and ex post facto laws. (Ex post facto = after the fact.) Good questions indeed. But they should go further and ask, Are laws like this tyrannical? Ex post facto legislation isn’t just bad because it’s unconstitutional. It’s unconstitutional because it’s bad. (Nate Silver did raise these broader questions, arguing that the bonus tax bill was like the congressional intervention into the Terri Schiavo case: quite possibly legal and constitutional, but “it represented a gross overreach of the chamber’s authority, and ultimately undermined, at least a little bit, the rule of law.”)

Harvard law professor Laurence Tribe tells Conor Clarke, “It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge. …The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective.”

Which led liberal blogger Kevin Drum to this conclusion:

it looks like the answer here is simple: even though the purpose of this tax would pretty clearly be punitive with extreme prejudice, we need to carefully pretend that it’s not.  And we need to make sure the legislative history shows that it’s not (it should be “manifestly regulatory and fiscal” Tribe says).

Considering that the rage of the anti-bonus army is being egged on by New York Post headlines such as “Not So Fast You Greedy Bastards” and “Tax the Damn Bonuses to Hell,” it might be tough to persuade a judge that this was “regulatory and fiscal,” not punitive, legislation.

The rule of law requires that like people be treated alike and that people know what the law is so that they can plan their lives in accord with the law. In this case, a law is being passed to impose taxes on a particular, politically unpopular group. That is a tyrannical abuse of Congress’s powers. And in addition, it is retroactive legislation, changing the law upon which AIG and its employees had relied. As James Madison wrote in Federalist 62, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws … undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.”

Selective taxation is tyranny. Ex post facto legislation violates the spirit of the liberal order, even if a particular piece of legislation can be “structured” to pass constitutional muster.