Topic: Law and Civil Liberties

The War on the Drug War

IMHO, the best show on television is HBO’s The Wire.  Now the writers and producers are taking their passion to the pages of Time Magazine, where they rail against the injustices of the drug war and call for jury nullification. (HT: Radley Balko’s Agitator).

Cato co-published the most comprehensive book on jury nullification in 1999.

For additional background, go here, here, and here.

FISA and the “Ravenous Trial Lawyers”

One of the common talking points of advocates for warrantless wiretapping is that the debate is really about lining the pockets of “ravenous trial lawyers.” As I’ve said before, this is a particularly silly argument. An op-ed in Sunday’s Chicago Tribune makes this argument particularly well:

The Bush administration and its acolytes now claim that we must give giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. The truth is that telecoms do not need a special deal. These companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. But, in this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?

The Bush administration and its supporters in Congress complain that these lawsuits are simply about money and enriching trial lawyers – suggesting that the litigation should be stopped because of the potential damages that might be awarded in such lawsuits. This criticism ignores the fact that, according to the rules in the federal court, the only way that we could ensure that a federal judge could continue to explore previous violations if the companies simply changed their participation or the government changed or ended the program was to ask for minimal damages. We are not interested in recovering money for ourselves, nor is our counsel, the American Civil Liberties Union of Illinois. We, however, are committed to assuring that these giant companies are punished for violating the law and thus dissuaded from violating the law in the future.

More important, amnesty not only lets the companies off the hook without answering any questions, it assures that the American people will never learn about the breadth and extent of the lawless program. Some seem to suggest that we should not have our day in court because a select few members of Congress have been able to review documents about the spy program operated by the White House. The judgment of a few Washington insiders is not a substitute for the careful scrutiny of a federal court.

This is ultimately not about money, but about the principle that nobody is above the law. I actually think that a reasonable compromise would be to limit damages due to past FISA lawbreaking. This would ensure that telecom companies aren’t driven into bankruptcy while upholding the principle that violating your customers’ privacy—and the law—comes with consequences. Of course, I’d bet money that supporters of warrantless wiretapping wouldn’t accept that compromise, because they, too, know that this is an issue of principle, not money.

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.