Topic: Law and Civil Liberties

Supreme Court Mulls Gladiators and the “Human Sacrifice Channel”

Following up on David’s post about the Stevens “depictions of animal cruelty” case, my takeaway from this morning’s argument is that there’s not a single vote to uphold the law.  The closest the government came to sympathy for its position came when Chief Justice Roberts wondered whether, if a narrower statute proscribing the “crush videos” that were the ostensible target of this legislation, the Court might uphold this broad statute on its face but also welcome many as-applied challenges in instances of prosecutorial overreach.  (For a pithy discussion of facial versus as-applied challenges, noting that the Court generally favors facial attacks in First Amendment cases, see Roger Pilon’s foreword to this year’s Cato Supreme Court Review.)

A less technical line of questioning involved the constitutionality of a statute banning a hypothetical “human sacrifice channel” or the broadcast of fight-to-the-death gladiatorial battles – from a foreign country where that sort of thing is legal.  (Justice Scalia quipped that the rule cannot be that you satisfy the broad legislation’s “historical value” exception if you dress up as an ancient Roman.)

Much of the analysis about these types of extreme scenarios turns on whether the broadcast/depiction creates a market for such activities – which is the rationale for banning child pornography (i.e., fewer children are subject to sexual abuse if there is not a legal market for pictures and videos of children being sexually abused).  Thus, a narrow statute banning the aforementioned crush videos would be kosher, as it were, but not the broad legislation at issue – which could potentially sweep in, to take one example, promotional videos put out by the Spanish board of tourism that include bullfighting clips.

For a more detailed report, see Lyle Denniston on SCOTUSblog (whom you can also see all week on C-SPAN’s excellent Supreme Court documentary mini-series).  And again, to read Cato’s view, see our amicus curiae brief.

If You Can’t Trust a Spy, Who Can You Trust?

As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require.  The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.

In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.

But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.

That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:

A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”

So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.

Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”

Think Tanks Should Be Able to Opine on Public Policy Without Running Afoul of Campaign Finance Regulations

In 2005, political opponents filed a complaint against the Independence Institute for not complying with the Colorado constitution and other campaign finance regulations when it spoke against a state ballot initiative. These regulations require, among other things, disclosure of the identity of anyone who has donated more than $20 to a cause and imposes registration and contribution limits on groups who have major interests in ballot issues.

The Independence Institute challenged the constitutionality of Colorado’s state ballot issue requirements and the issue is petitioning the Supreme Court for certiorari in Independence Institute v. Buescher. Cato has filed an amicus brief, in cooperation with Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute in support of the Independence Institute. We argue that Colorado’s ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks’ future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.

You can download the entire brief here. A special thanks to Cato Legal Associate Travis Cushman for his assistance on this brief.

First Amendment Exceptions

The Supreme Court today is considering the case of United States v. Stevens, a challenge to a 1999 federal law outlawing depictions of animal cruelty. The government says that such depictions are “unprotected” speech. Many First Amendment advocates and news organizations are supporting the challenge to the law.

It seems an easy enough case to decide, given the plain language of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, except in the case of depictions of animal cruelty.


For a more substantive discussion of the issues in United States vs. Stevens, see the Cato Institute’s amicus curiae brief.

Political Prisoners in Venezuela: Where Is the Organization of American States?

The Washington Post has a great story today on the swelling number of political prisoners in Venezuela. As the story points out, the government of Hugo Chávez is increasingly targeting university students who have been active in the opposition movement. They are jailed under bogus charges of “destabilizing the government,” or “inciting civil war.”

Unfortunately, despite stories and numerous reports from international media outlets and human rights groups, the Organization of American States—which has been very active in trying to reinstall Manuel Zelaya to the Honduran presidency—has remained silent on this issue. Last week, dozens of students went on a hunger strike in front of the OAS headquarters in Caracas, but no official from that organization came out to meet them. After several days some students were allowed to talk with the OAS ambassador in Caracas, who put them in touch with the director of the Inter-American Commission on Human Rights (IACHR). Jose Manuel Insulza, secretary general of the OAS, then asked the Venezuelan government to authorize the visit of a delegation of the IACHR, a request that hasn’t been granted. Judging by the lack of follow up efforts, the OAS, made up of a majority of countries that receive Venezuelan largesse of some form, seems mostly uninterested in pressing this issue.

The OAS seems ready to help deposed would-be autocrats in Latin America. Where is it when it comes to defending the rights of political prisoners in Venezuela?

A New Court Term: Big Cases, Questions About the New Justice

Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term.  The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.

In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already.  Fortunately, unlike last year, we’ll see many blockbuster cases, including:

  • the application of the Second Amendment to state gun regulations;
  • First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
  • an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
  • federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
  • a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
  • judicial takings of beachfront property; and
  • notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.

Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court.  While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity.  Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.

Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right.  We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.

In short, it’s the first day of school and I’m excited.

Misleading on PATRIOT Reauthorization

It’s nice to see that some media outlets are starting to pay attention to deliberation in the Senate over the reauthorization of expiring PATRIOT Act provisions.  It’s less nice when, as in this FOX News report, “paying attention” means “peddling outrageous falsehoods.”  To be sure, the issue can be dauntingly complicated, but these are enormous howlers that the most elementary fact checking ought to catch. Many of the false claims appear to echo this Wall Street Journal op-ed by former attorney general Michael Mukasey, which is similarly misleading. Let’s review.

First, the report begins by suggesting that there’s some risk that the three sunsetting powers in question—roving wiretap authority, “lone wolf” targeting, and section 215 orders for “tangible things”—are in real jeopardy of expiring altogether. “Some Democrats,” we’re told, would like them to “go bye-bye.” This is false. About roving wiretaps and 215 orders, there is no disagreement whatever. As I outlined in a previous post, the most aggressive reform proposal was Russ Feingold’s, and he’d keep both of these with some added safeguards. The legislation that appears to be on its way to winning the support of the Judiciary Committee—including a majority of Democrats—would renew all three provisions. And that legislation would leave two of the three—the “lone wolf” and the roving wiretap authority—totally unchanged.

Second, the FOX report and the Mukasey op-ed both claim that it was because investigators lacked the ability to investigate “lone wolves” under the Foreign Intelligence Surveillance Act that the FBI was unable to target “20th hijacker” Zacarias Moussaoui. This, too, is false. I’ll have a piece up at Reason early next week making the broader case against the lone wolf provision, but for the moment it’s worth noting that a bipartisan Senate report investigated this claim back in 2003 and found it to be without merit. The report concluded that the FBI could have obtained a FISA warrant under existing law, but failed to do so because supervisors failed to forward relevant information along to FBI lawyers, and because they misunderstood some of FISA’s key definitions and requirements. Furthermore, it notes that the FBI later obtained a criminal warrant to search Moussaoui’s laptop on the basis of the exact same evidence they already had, so even in the absence of FISA authority, the search could have been conducted earlier. The problem was not that they lacked sufficient surveillance authority, but that, as the report puts it, “FBI Headquarters personnel failed miserably” in a variety of ways. Of course, it’s always easier to say “we need more power” than “we screwed up.” But again, only Feingold’s proposal would allow this provision to expire, and it seems fairly clear that there’s no real support for doing so among legislators of either party.

Third, the FOX report claims explicitly, and Mukasey’s op-ed strongly implies, that “these provisions” were somehow instrumental in the investigation and arrest of suspected terror plotter Najibullah Zazi. We don’t actually know that yet: investigators have said they plan to use evidence obtained under FISA, but we don’t know which parts of FISA were involved, and we certainly don’t have any reason to think that the reforms proposed even in Feingold’s ambitious bill would have made any difference in the investigation. We know for certain that the “lone wolf” provision was not invoked—first, because the Justice Department has stated clearly that they have never used that provision, and second, because news reports suggest that Zazi is either a citizen or a permanent resident, and in either case the “lone wolf” provision would not have been available. It appears that Zazi was wiretapped, and if he was switching phones frequently to evade surveillance, investigators may have used a “roving” wiretap. The renewal legislation favored by most Democrats on the Senate Judiciary Committee would preserve that roving authority exactly as it exists now; under Feingold’s proposal they would have to have “identified” Zazi at the time they got the order in order to make it eligible for roving, which it seems extremely likely that they had.

As Marcy Wheeler points out in her summary of the evidence against Zazi, it’s possible that a section 215 order was used to obtain evidence that Zazi and his associates were purchasing chemicals that could be used to make a bomb. If these records were obtained after Zazi or his associates showed up on the FBI’s radar, then he would have been a target of a national security investigation, and his records would be subject to seizure under all of the reform proposals. The other possibility is that Zazi first came to the FBI’s attention because of these chemical purchases, because they were sending out broad requests for information about anyone who had purchased certain products. It’s a slightly closer call if that was the case, but even Feingold’s proposal permits orders to be issued for records that are relevant to “the activities” of suspected terrorists, if such records were needed to determine the identities of the persons involved.  Apparently these were chemicals known to have been purchased by other terror suspects plotting to make similar bombs, which sounds like it ought to provide a “reasonable basis” for believing purchases of the appropriate combination of chemicals in sufficient quantities “pertain to the activities” of a suspected terror group. In short, given what we currently know, there is no basis whatever to infer that even the most ambitious proposal to add civil liberties checks to the renewed PATRIOT powers would have created any serious obstacle to the acquisition of any of the evidence in this case.

Fourth, Mukasey’s op-ed claims that proposed safeguards “turn the concept of an investigation on its head, requiring the government to submit proof at the outset of an investigation while facts are still being sought,” and that they would require the government to “prove that the information sought in this record relates to a foreign power.” Now, this is a fairly sloppy deployment of the word “proof”: Mukasey conflates the “proof beyond a reasonable doubt” needed at the end of an investigation, when the time comes to prosecute someone, with the standard of “probable cause” that applies to search warrants. But even under the Feingold bill, “probable cause” is not the standard. A “reasonable basis” will do. Essentially, the government just needs to show some grounds for thinking that they’re not engaging in a pure fishing expedition: that either the particular suspect or the “activities” in question can be reasonably linked to a terror group.

Finally—and this is trivial, but indicative of the level of regard for accuracy in the piece as a whole—text that appears onscreen during the FOX report claims that the PATRIOT Act “may be renamed later this year as the JUSTICE Act.” I suppose the implication is that people who care about civil liberties are so hostile to patriotism that they can’t even abide having it in the name of a law. In fact, the JUSTICE Act is the name of Feingold’s proposed bill to reform PATRIOT. That bill has no real chance of passing wholesale at this point, but in any event, it would not “rename” anything.

I think it’s telling that opponents of common-sense civil liberties safeguards don’t seem to think they can make their case without wildly misrepresenting the facts about both investigations and the changes legislators have actually proposed. They have to make it sound as though people are trying to eliminate important investigatory powers altogether—which nobody is arguing for—because it’s awfully hard to argue against reasonable and carefully crafted privacy protections if you’re honest about what they actually entail. And isn’t it a little rich that a network that is forever warning us that we’re on the verge of descending into fascism should be so hostile to any suggestion that there ought to be some moderate limits on government surveillance? I’d have thought having a Democrat in the White House might make it acceptable to care about the scope of executive power to spy on Americans again.