Topic: Law and Civil Liberties

Blind Faith and FISA

Over at Ars Technica, I cover Sen. Chris Dodd’s plans to filibuster the FISA bill that is now under consideration in the Senate. Given that the Senate already overrode Dodd’s filibuster and passed legislation that undermines civil liberties back in February, his effort this time is a long shot. But he’s giving it all he’s got. Dodd gave a really excellent speech on the Senate floor in opposition to the legislation. He makes a lot of great points, but this passage was my favorite:

This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear: “Trust me.”

And that message comes straight from the mouth of this President. “Trust me.”

What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt. But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark. I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.

I can’t put it better than this: “ ‘Trust me’ government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.”

Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan – in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.

We once had a Republican president who understood that blind faith in the president was unpatriotic. Not only do few Republicans understand that today, but it seems a lot of Democrats have forgotten it too.

Family Security Matters: REAL ID = National ID

A month ago, I wrote here and in a TechKnowledge article about the telling imagery that a company called L-1 Identity Solutions had used in some promotional materials. The cover of their REAL ID brochure featured an attractive woman’s face with her driver license data superimposed over it, along with her name, address, height, eye color, place of birth, political affiliation, and her race. This is where the national ID system advanced by the REAL ID Act leads.

Here’s another example. A group called Family Security Matters has reprinted on its site a blog post supporting the $80 million in grant money that the Department of Homeland Security recently announced, seeking to prop up the REAL ID Act. (I’ve written about it here and here.)

What’s interesting is not that a small advocacy group should support REAL ID, but the image they chose to illustrate their thinking: a man holding his “National Identity Card,” his fingerprint and iris images printed on it, and presumably programmed into it.

Were there ever any doubt that REAL ID was a national identity system and a step toward cradle-to-grave, government-mandated biometric tracking, Family Security Matters has helped clear that up.

TSA Background Check Includes Political Party

We’re now learning the meaning of a new policy that Americans can’t “willfully” refuse to show ID at airports. The Consumerist has a write-up of one man’s experience with IDless travel. It turns out they do a background check on you using, among other things, your political affiliation.

That’s a nice window onto what identity-based security is all about: giving the government deep access into all of our personal lives. Of course, this type of security is easy to evade, and the 9/11 plot was structured to evade it. Checking ID cannot catch someone who has no history of wrongdoing.

Identity checks at airports require law-abiding American citizens to give up their privacy, including their political affiliations, with essentially no security benefit.

More Reaction to Boumediene Ruling

Jonathan Turley: What citizens need to understand is that it is meaningless how many rights are contained in a Constitution, if the government can deny you access to the courts to vindicate those rights.

Richard Epstein: Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

Robyn Blumner: Upholding the Constitution doesn’t make us less safe, only more careful with the lives of other people. Affording timely due process to those we suspect is an honorable endeavor engendering goodwill and worldwide respect, and serving, ultimately, as great a protective shield against attack.

Steve Chapman: It’s also a small price to say that if the executive branch wants to capture someone, treat him as an enemy combatant and hold him for the rest of his life, it should have to justify that decision to someone other than itself. Critics of this decision are terrified that the courts will have the power to free innocent men. But really, the alternative is a lot scarier.

Glenn Greenwald: Our political and media elite were more than willing – they were eager – to relinquish that [habeas] right to the President in the name of keeping us Safe from Terrorists. Today, the U.S. Supreme Court, in what will be one of the most celebrated landmark rulings of this generation, re-instated that basic right, and in so doing, restored one of the most critical safeguards against the very tyranny this country was founded to prevent.

Harvey Silverglate: This past week, the Supreme Court rejected the Bush administration’s astonishing claim that it had the power to detain suspected “enemy combatants” at Guantánamo Bay — potentially for life — without fair proceedings or meaningful access to the federal courts. This moving reaffirmation of the so-called Great Writ of habeas corpus was probably the high court’s most important civil-liberties decision in my lifetime (and I was born in 1942).

Previous coverage here and here.

Happy Kelo Day

As our friends at the Institute for Justice will tell you, today is the third anniversary of Kelo v. New London, the property rights case that made my colleague Bob Levy’s list of the “Dirty Dozen” worst cases in modern Supreme Court history.  This was the case where the Fifth Amendment’s “public use” requirement was found to impose essentially no restriction on the government’s eminent domain power.  In some senses this was a lost battle leading to great progress in the war to preserve property rights, with legislatures in numerous states enacting anti-Kelo legislation in the wake of concerted grassroots activism against the decision.

This morning the Supreme Court found a curious way of winking at Kelo Day.  As I was scrolling down the orders list – a many-paged list of administrative actions, mostly cert denials – I happened upon the following notation:

07-1247 GOLDSTEIN, DANIEL, ET AL. V. PATAKI, FORMER GOV. OF NY

The petition for a writ of certiorari is denied. Justice Alito would grant the petition for a writ of certiorari.

Now, it’s exceedingly rare for individual justices to have the clerk record how they voted on a cert petition, but here Justice Alito did just that, and in a case that rang a bell in my mind I couldn’t place.  Then I realized that Goldstein v. Pataki was the appeal by a group of home- and business-owners who are likely to lose their property to a development that is to provide a new home to the the New Jersey Nets plus 16 high-rise office and apartment towers and a hotel.  Thus, not only is Justice Alito as friendly a vote on this issue as was his predecessor Justice O’Connor (who wrote an impassioned Kelo dissent) but he is apparently an emphatic one.  See a bit more here.  This is not necessarily a surprise – and it still leaves us one vote short – but, again, the notation on the order list is a neon light to Supreme Court watchers.

More on REAL ID Grants - DHS’ REAL ID Fervor Is Fading …

I wrote here last week about the limping DHS grant-making process for the REAL ID Act. (Summary: Good money after bad.)

Unsurprisingly, ID card maker Digimarc is touting the spending going to “its” states in a press release. I wrote about the plans of biometric technology company L-1 to acquire Digimarc’s ID card business in a recent TechKnowledge entitled “L-1: The Technology Company in Your Pocket.” (Digimarc recently received a higher offer for its ID card business from a French conglomerate. The appetite for national ID systems is certainly higher in old Europe and elsewhere around the globe than in the United States.)

Late Friday, DHS Assistant Secretary for Policy Stewart Baker posted on DHS’ “Leadership Journal” blog about the grants. Late Friday is the time of the week when releases are least likely to get uptake - are DHS web staff trying to suppress Baker? You’d expect to see something like this on Friday morning, or the night before grants are announced.

Anyway, in his blog post, Baker tries to inflate the money available for REAL ID, claiming that this $80 million is really more like $511 million. It’s not. And if it were, it still would be only 3% of the $17 billion cost of implementing REAL ID.

Of course, Baker claims that the costs of implementing REAL ID are lower now, but that’s only because DHS assumed away much participation in the program. I suppose France could have defeated Germany buy building only 27% of the Maginot line, but it’s doubtful. That’s what a national ID card is - a Maginot line that’s easy to avoid. Baker wants us to believe that a bad security system which is also incomplete is therefore … somehow … good.

Baker’s post, like the rest of DHS’ recent efforts, is a tired effort to prop up REAL ID. He tries to skip past the issues, saying “The arguments for having secure identification speak for themselves.” They don’t, and Baker hasn’t spoken for them either.

DHS’ institutional support for REAL ID grows more and more anemic with each passing day. Witness the thoroughly lame effort of the Department to revive it by banning “willful” refusal to show ID at airports. I now find myself in the position of trying to draw attention to the corpse of REAL ID - I do so because government programs like this have to be really dead before they’re truly dead.

Giving away grants that nobody wants. Defending what can’t be defended. I would be tired too. Congress can make everyone’s life better by rescinding these grants and repealing the REAL ID Act.

No News Is No News

The Court did not issue Heller today, which means it will do so Wednesday (or Thursday if, as expected, it does not get through its 7 remaining opinions on Wednesday).  The encouraging news from today is that Heller is the only opinion outstanding from the cases argued in March, and Justice Scalia is the only justice who has not yet written a majority opinion from that sitting.  That’s no guarantee, but the smart money is he will be the author.

The discouraging news from today is that the Court denied cert in Baylor v. United States, a federalism case in which Cato filed an amicus brief.  Briefly, we supported a pizza-shop robber who was prosecuted not in state court for, say, robbery, but in federal court for ”interfering with interstate commerce” and therefore violating the ”Hobbs Act” (a 1946 anti-racketeering law).  The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria got its flour, sauce, and cheese from various states outside Ohio.  We argued that prosecuting robberies that have such an attenuated effect on interstate commerce destroys the line between the states’ power to punish violent crime and Congress’s power to regulate interstate markets.

Also not decided today were Davis v. FEC, the “millionaires’ amendment” campaign finance case in which we also filed a brief, and Exxon v. Baker, where $1.5 billion in punitive damages is at stake over a super-technical application of maritime law.