Topic: Law and Civil Liberties

The Journal vs. the Fourth Amendment

There’s an astonishing editorial in the Wall Street Journal today about the FISA amendments that were passed in July. As you might recall, that legislation granted retroactive, blanket immunity for companies that illegally participated in the government’s wiretapping programs and substantially weakened judicial oversight of government surveillance of domestic-to-foreign communications. Under the new law, the government is no longer required to obtain an individualized warrant if it wishes to spy on your communications with people overseas. Rather, it can submit a “certification” that describes the general parameters of a broad eavesdropping program. Judges are required to approve the requests without ever seeing specific information about who would be targeted. The legislation also lengthened the grace period during which the government can conduct surveillance without any judicial oversight at all. Whereas emergency warrants were previously required within three days of the start of eavesdropping, the new legislation allows the government to spy for as long as four months while the judicial branch deliberates about its legality.

With all that in mind, I’m surprised to learn that the Journal seems to believe that the new, watered-down version of FISA is still too restrictive:

The Attorney General is only allowed to pursue threats up to certain legalistic edges, which contracted under this year’s political compromise that greatly expanded the role of the courts in intelligence gathering. Commissioner Kelly is practically begging people to think about what this means in the real world.

FISA was passed before the advent of disposable cell phones, encrypted emails and high-speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was “illegal” under FISA.

Then the anti-antiterror bar filed multibillion-dollar lawsuits against the telecom companies whose good-faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn’t cooperate without Congress’s blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price – the one Commissioner Kelly is paying – was narrowing the government’s antiterror wiretapping powers.

What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.

If the Journal believes it’s problematic for a “faceless FISA judge” who “answers to no one” to deny surveillance requests, then its quarrel isn’t with liberals, Democrats, or trial lawyers, it’s with the Constitution itself. The whole point of the Fourth Amendment is that “unelected judges” oversee the activities of law enforcement.

Moreover, the FISA bill the Journal derides makes it crystal clear that the government can intercept purely foreign-to-foreign communications without any judicial oversight whatsoever. And if our hypothetical Peshawar terrorist is communicating with an American, the government can take advantage of the new “certification” process that involves only cursory judicial review and doesn’t require any showing that the target is involved in terrorism. Only in cases where both ends of the communication are in the United States does the government require an individual warrant.

The Journal appears to take the extreme viewpoint that there should be no judicial oversight of the government’s domestic antiterrorism activities at all. But we know what happens when the government engages in surveillance without judicial oversight. History tells us that when judicial oversight is absent, abuses are inevitable. And if we create a terrorism exception to the warrant requirement, it would steadily grow to swallow the rule. Fighting terrorism is important, but we can do it without sacrificing judicial oversight.

Concealed Carry in National Parks

The Department of the Interior has concluded its rulemaking and will allow those with state-issued concealed handgun permits to carry in national parks and wildlife refuges.  This is a victory for self-defense nationwide.  People find themselves victims of predators in state and national parks, of both the two-legged and four-legged varieties.  The new rule should take effect in mid-January. 

In addition to providing for lawful self-defense, this new rule will prevent citizens from unknowingly breaking the law.  Driving with a valid concealed carry permit becomes illegal if you turn on to a road on federal property such as the Blue Ridge Parkway.  No notice that your state permit is invalid on this particular road?  Too bad, you’re a criminal.  Good riddance to bad law and bad policy. 

This comes in the wake of the invalidation of the District of Columbia’s gun ban with the Heller decision, detailed in Brian Doherty’s new book Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment.  The Cato book forum is available in video and podcast formats here.

Supreme Court to Decide al-Marri Case

Today, the Supreme Court announced that it will hear an appeal in the case of Ali al-Marri, a Qatar citizen who, while a student at Bradley University in December 2001, was arrested under terrorism suspicions. He was initially charged with making false statements to the FBI and to financial institutions, but those charges were dropped in 2003 when President Bush designated him an unlawful combatant. Despite the lack of charges, Marri is being held indefinitely at the Naval Consolidated Brig in Charleston, S.C. He is the only person designated an enemy combatant who is known to be held in the continental United States.

This is another very important case that will consider the scope of executive power.

For previous coverage and background, go here and here.

Happy Repeal Day!

Today is a great day in American history. Exactly 75 years ago, the 21st Amendment was ratified, thus repealing Prohibition. But Prohibition isn’t a subject that should be studied by historians alone, as this failed experiment continues to have a significant impact on our nation. 

Groups like the Women’s Christian Temperance Union, a key force in the passage of Prohibition, survive to this day and continue to insist that Prohibition was a success and advocate for dry laws

Prohibition-era state laws, many of which are still on the books today, created government-protected monopolies for alcohol distributors. These laws have survived for three-quarters of a century because of powerful, rent-seeking interest groups, despite the fact that they significantly raise costs and limit consumer options. And because of these distribution laws, it is illegal for millions of Americans to have wine shipped directly to their door.

To learn more about the history and legacy of Prohibition, check out my podcast and watch the live webcast of Cato’s policy forum, “Free to Booze: the 75th Anniversary of the Repeal of Prohibition,” starting at 3:30 today.

Happy Repeal Day

Today is the 75th anniversary of the repeal of alcohol prohibition. We are, alas, living in a time when way too many people think that the way to solve problems and improve the human condition is to enact more laws. Let’s remember that repealing certain laws can actually help to create a more free and prosperous society! 

Cato is celebrating today’s anniversary with an event this afternoon entitled “Free to Booze.” 

More thoughts on Repeal Day from Radley Balko and our friends at MPP. For Cato scholarship, go here, here, and here.

Originalism vs. Class Action Reform

David Boaz once suggested that the Class Action Fairness Act—an important statute that federalizes lots of abusive lawsuits traditionally confined to states—gives federal courts power they shouldn’t have.  In this article, I marshal new evidence of the Constitution’s original meaning that supports David.

In a nutshell:  the evidence confirms an interpretation of the Constitution’s text advanced by (gasp!) Public Citizen’s litigation director Brian Wolfman.  CAFA pins federal jurisdiction over state-filed class actions on the fact that many classes include members who are citizens of different states than the defendant.  Congress, in turn, assumed these suits fall within federal courts’ jurisdiction over “controversies between citizens of different states.” 

However, in congressional testimony on CAFA, Wolfman argued that proposed members of a class are not parties to a constitutional “controversy.”   For reasons too technical to go into here, if Wolfman’s right that would punch a big gaping hole in CAFA, allowing plaintiffs’ lawyers to easily evade federal jurisdiction in lots of cases. 

My evidence suggests Wolfman is correct—although Congress has the power to rewrite CAFA in a way that would make it constitutional.  Unfortunately, as the article explains, a “fix” for CAFA is probably not politically feasible, at least in the forseeable future.

For more on the argument, which involves some pretty technical points of federal jurisdiction and class action law, see the abstract, posted here, and a longer excerpt from the article posted by Professor Larry Solum on his Legal Theory Blog here.

The bottom line:  Tort reformers who are faithful to the original meaning of the Constitution must confront the uncomfortable fact that the Constitution takes key provisions of CAFA, the tort reform movement’s greatest legislative achievement, off the table.

David Kopel on the Plaxico Burress Prosecution

Cato’s associate policy analyst, David Kopel, comes to the defense of New York Giants wide receiver Plaxico Burress in today’s Wall Street Journal.  The WSJ law blog is hosting a discussion

The restrictive permitting system in New York allows for the rich and celebrities such as Robert DeNiro, Donald Trump, Howard Stern, and Harvey Keitel to carry a concealed weapon.  Average, law-abiding citizens and non-residents are given no consideration. 

This news comes hot on the heels of Brian Doherty’s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, and our book forum (archived in video and podcast form).