Topic: Law and Civil Liberties

Counterterrorism, Torture, and the Law

Over at The Wall Street Journal, Cong. Peter Hoekstra calls for an investigation into “what the Obama administration may be doing to endanger the security our nation has enjoyed because of interrogations and other antiterrorism measures implemented since Sept. 12, 2001.” Hoekstra implies, or at least clearly believes, that Obama’s renunciation of torture has made the country less safe. Rest assured, when the next attack occurs (and there will be another attack), Hoekstra and other supporters of torture will claim vindication, even though they won’t be able to point to direct evidence that torture would have averted the attack. It is equally impossible to prove a negative – why something does not occur – as it is to prove that an action not taken in the past would have prevented something in the present.

Similarly, former Vice President Cheney claims that the use of techniques such as waterboarding, sleep deprivation, stress positions, and cramped confinement enabled the U.S. government to stop future terrorist attacks, and he has asked the Obama administration to declassify the documents that supposedly prove it. Cheney has previously said that President Obama’s renunciation of torture increases the likelihood that future attacks will be successful.

Of course, Cheney has not asked for the declassification of all information obtained by torture. He presumably doesn’t want the American people to know the countless false positives, the fake leads, the purely bogus information offered up by those being tortured in a vain attempt to halt – or merely postpone – their severe discomfort. (Gene Healy documents a few of these in his recent column.)

Nor can Cheney or Hoekstra prove that the few kernels of useful information obtained under torture could only have been acquired under torture, and not by other techniques, techniques that were consistent with our laws, and that we employed in past conflicts. They can’t prove such claims, because they aren’t true.

In the end, however, this is not a question of whether torture works. Appeals to reason fail when people perceive a danger beyond what reason informs. After all, no reasonable person could logically conclude that terrorism poses an existential threat to the Republic, and yet that false belief continues to shape our conduct. We choose not to consider what has worked in the past because we perceive the past to be irrelevant.

That our actions are driven not by logic but by our fears – visceral, instinctual fears – is understandable. Vengeful actions, while not logical, can be justified in certain circumstances. Would the relatives of those killed in Oklahoma City have been justified in publicly stoning Timothy McVeigh? We could have given a rock – or better yet a piece of rubble from the Alfred P. Murah building – to one family member of each of those killed. The parents of the children killed in the day care center might have been handed particularly large chunks of concrete. Or perhaps the families of the 87 people killed in the Happy Land social club should have been allowed to burn alive Julio Gonzalez, the unemployed Cuban refugee who set the fire? And if we handed a machete to Mariane Pearl – or to Adam Daniel, the son Daniel Pearl never knew – and watched them chop off Khalid Sheikh Mohammed’s head, no one would shed a tear. We might even call it justice.

That we do not resort to such tactics is one of the things that separate us from animals.

In the animal kingdom, might makes right. If the lion can catch the antelope, no higher authority can stop it from devouring his prey. No moral code teaches the lion that he should eat grass instead.

A conscience is not the only thing that separates us from the animals. When our moral compass fails us, when we are blinded by rage and a thirst for justice, law brings us back, or merely holds us back, from doing what our basest human instincts tell us is right and proper.

Since 9/11, many people have framed these laws as a mark of our weakness. Our enemies are not bound by any code, so why should we be? Lincoln suspended habeus corpus believing it necessary to save the Union. FDR approved the internment of Japanese-Americans on similar grounds. It doesn’t matter that neither measure was actually instrumental to saving the Republic from destruction; indeed, the evidence shows that they had no such effect. All that matters is that these men acted in good faith.

Thus is the torture debate at the center of our evolving concepts of executive power, with one side saying that the president is not above the law, and the other side saying that a president (and, actually, not just the president, but anyone in the executive branch) is immune from such laws when he or she believes them to be an impediment to his ability to carry out his duties. It isn’t exactly Frost/Nixon, “when the president does it, that means that it is not illegal,” but it’s close enough.

It is not as high as some people might think, but still forty percent of Americans believe that torture is appropriate in certain circumstances, even though it is clearly against the law. Most of these same people presumably don’t believe that other laws – murder, rape, incest, and human slavery, for example – can be circumvented by presidential fiat. But terrorism is different, so the thinking goes, and fighting it requires us to discard troublesome laws.

The reality is exactly the opposite. Because a central object of terrorism is to induce advanced societies to come loose from their ideological moorings, we must strive even harder to adhere to them. Because terrorists attempt to trick or goad a government founded on certain principles to depart, if only for a moment, from those same principles, our leaders must resist the urge to do so.

On these terms, we haven’t been doing a very good job. We have been circumventing our fundamental principles for seven years, and many Americans think that we should – nay that we must – continue doing it…indefinitely.

It is a sad and sickening spectacle. If we continue down this path – if we cannot call torture for what it is, if we cannot restore an ironclad respect for the rule of law, if we cannot claw back some semblance of separation of powers, with a Congress willing to oppose White House power grabs instead of simply enabling them – then the terrorists will have won.

The Way to Stop Discrimination on the Basis of Race Is to Stop Discriminating on the Basis of Race

Today the Supreme Court heard argument in Ricci v. DeStefano, the “reverse discrimination” case in which the city of New Haven refused to certify the results of a race-neutral promotion exam whose objective results would have required, under civil service rules, the promotion of only white and Hispanic (but no black) firefighters.

The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.

Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court’s ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.

The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

Today the Court seemed starkly divided.  The “liberal” justices hinted that an employer should be allowed to be “race conscious” to avoid Title VII lawsuits alleging “disparate impact” against minorities in hiring and promotions.  The “conservatives” were disturbed that the only reason the firefighters weren’t promoted was their race.  Nobody seemed persuaded by the government’s request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts.  Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.

It was in Parents Involved that Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a “strong basis in evidence” that the test is somehow biased against a particular racial group.

What Is a “Fifth Column” Anyway?

@RadleyBalko points to a Washington Examiner column in which Jim Kouri, Vice President and Public Information Officer of the National Association of Chiefs of Police, says that Obama administration policy changes with regard to the “global war on terrorism” allow “suspected Fifth Column-type groups … to make symbolic demands on agencies such as the Federal Bureau of Investigation and the Central Intelligence Agency.” He says the Council on American-Islamic Relations has called on the FBI to confirm or deny that a number of Long Island mosques are under law enforcement surveillance.

It’s hard to find the answer to the first question this raises: “So what?” Kouri does not make the case he implies: that something sinister lurks because this group, having a suspicion of something they see as wrongdoing, asks the agency in question whether it’s happening or not.

But the piece raised another question for me: “What’s a ‘Fifth Column,’ anyway?” The expression has been around forever, but what does it really mean?

Ahead of the Siege of Madrid in the Spanish Civil War, a general under Francisco Franco claimed that he would take the city with the four columns of troops under his command and a “fifth column” of nationalist sympathizers inside the city.

The city never fell to the nationalists, but fear of this “fifth column” caused the Republican government under Francisco Caballero to abandon Madrid for Valencia and it led to a massacre of nationalist prisoners in Madrid during the ensuing battle.

So a “fifth column” is not so much an insidious group of spies or traitors as it is the threat of such a group which causes the incumbent power to miscalculate and overreact. That doesn’t clear up what Kouri is trying to get across, but it does have the air of unintended confession.

9th Circuit Imitates Marcel Marceau

Last month, I warned that the 9th Circuit Court of Appeals would soon be handing the school choice movement a legal setback. Well, it’s here.

As expected, the 9th Circuit has reinstated a lower court challenge to Arizona’s scholarship donation tax credit program. The program allows taxpayers to contribute to non-profit Scholarship Tuition Organizations (STOs) that provide financial assistance to families choosing private schools. The taxpayers can then claim a dollar for dollar credit for their donation.

While this ruling leaves the program intact for the time being, it would almost surely require the tax credit program to be amended if it is allowed to stand. Fortunately, as I noted in my earlier post, the 9th Circuit is overturned as often as a caber at the Highland Games. Its ruling is unlikely to stand if appealed to the U.S. Supreme Court.

At issue is the fact that taxpayers are free to choose the STOs to which they donate their money, and private STOs are free to set criteria for the schools at which their scholarships can be redeemed. There are thus some STOs that offer scholarships only to religious schools. This is essentially the same situation that obtains when taxpayers claim deductions for contributions to non-profit charities. The charities can legally be religious or secular, and they can infuse the services they offer with religion, or not, as they choose. The whole thing is constitutional because it is the taxpayers, not the government, that decides which charity gets their funds. This is all settled law.

To get around the fact that the legal precedents were against it, the 9th Circuit decided to do a compelling impression of Marcel Marceau, pretending to hem itself into an invisible legal box. Specifically, the 9th Circuit decided to pretend that the constitutional restrictions limiting government expenditures (as in school voucher programs) also apply to the private funds at issue under tax credit programs.

That box, of course, does not exist. No government money is spent under the tax credit program, and the tax credits are themselves available on an entirely religiously neutral basis, in scrupulous conformance with the Establishment Clause of the First Amendment.

So here’s my next legal prediction: the constitutionality of the Arizona education tax credit program will ultimately be upheld by the U.S. Supreme Court, and opponents of educational freedom will have to resort to some new ploy in their efforts to herd American families back onto the public school plantation.

Yes, California, There Is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense.  Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:

While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use.  That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights.  I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected.  And courts covering other parts of the country – most immediately the Seventh Circuit, based in Chicago – will have their chance to make the same interpretation in due course.

Just as interesting – and potentially equally significant – is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them.   Some may disagree with the decision of the Founders to enshrine a given right in the Constitution.  If so, then the people can amend the document.  But such amendments are not for the courts to ordain.

Quite right.