Topic: Law and Civil Liberties

Stewart Baker Should Start at the Beginning

Department of Homeland Security Assistant Secretary for Policy Stewart Baker has posted the second in a series on the REAL ID Act at the DHS Leaderhip blog. I assessed his first try here.

This one raises the privacy issues with REAL ID, and it claims that privacy advocates “can’t and won’t tell you precisely how REAL ID threatens privacy.” Knowing his smarts and savvy, I’m confident that Stewart is feigning unawareness of my book Identity Crisis and the hearings in Congress that have exposed the many threats to privacy from REAL ID specifically, and national ID systems generally. He has also had the opportunity to read the DHS Privacy Committee’s report, which cited and discussed “serious risks” to privacy from the REAL ID program.

It’s true that privacy is a complex subject, and the complexity is preserved by the fact that a number of different interests are often lumped together under the “privacy” heading. But Stewart has certainly had the opportunity to read the Privacy Committee’s “framework document,” which articulates each of these interests. For a more thorough study of privacy in its strongest sense (control over personal information), he could re-read (or perhaps just read) my 2004 study “Understanding Privacy—and the Real Threats to It.”

The claim that privacy advocates won’t articulate the privacy problems with REAL ID is a shift from earlier public comments where Baker reportedly expressed puzzlement about privacy concerns with REAL ID, or his failure to understand them. One can’t be puzzled by the privacy concerns with REAL ID at one point in time and later claim that privacy concerns haven’t been articulated. There’s something else afoot.

I suspect it’s the fact that Baker gives higher priority to implementing REAL ID than to protecting Americans’ privacy. He just can’t bring himself to say so because it wouldn’t be popular or politic. (To be clear: He makes claims that REAL ID will protect privacy, but they do not pass muster.)

Baker should address the privacy consequences of REAL ID in a way that is not feigned ignorance or dismissiveness, but he should do something else first: Tell us what REAL ID is good for. The burden of proof in the debate over REAL ID is not on privacy advocates to say why not, but on proponents of the national ID law to say why.

No proponent of REAL ID, including Stewart Baker, has ever articulated how the program will cost-effectively secure the country against any threat. In fact, the Department of Homeland Security declined to articulate how REAL ID works to benefit the country in its analysis of the REAL ID regulations it issued. This is something I discussed, along with the privacy concerns, in my May 2007 testimony to the Senate Judiciary Committee:

The Department of Homeland Security has had two years to articulate how REAL ID would work. But the cost-benefit analysis provided in the proposed rules issued in March … helps show that implementing REAL ID would impose more costs on our society than it would provide security or other benefits. REAL ID would do more harm than good.

This is true if you assign no value to privacy at all. Americans do value their privacy and civil liberties, but the conversation should start at the beginning–with an articulation from Stewart Baker of how REAL ID provides cost-effective security.

Bush Opponents Upset That Bush Lost in the Supreme Court

In an interesting side-note to the Medellin decision, the case’s convoluted procedural history made for some rather strange political bed fellows.  The Court’s decision, anchored by the “conservative wing” (Roberts, Scalia, Thomas, Alito) and joined by the “moderate” Kennedy and (writing separately) the “liberal” Stevens effectively clears the last remaining roadblock to Texas’s imposition of the death penalty on the murderer Jose Erenesto Medellin.  Consequently, Tuesday’s result disappointed death penalty abolitionists, who join on the losing side those who want international law to have direct applicability in the United States.  That’s right, by ruling against President Bush’s executive overreach – which at least three members of the Court’s “liberal” wing implicitly ratified – the Court angered cosmopolitan liberals.  Go figure.

I Am the Very Model of a Modern Attorney General

Yesterday, in addition to announcing its decision in the Medellin case (which I blogged about here), the Supreme Court heard argument in two cases relating to the War on Terror. 

First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces – as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts.  This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried.  (My colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.) 

Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf.  As Lyle Denniston of SCOTUSblog put it, “when several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced.”  Ouch.  Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.

The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century.  (Is it ok to use that expression for the 1999-2000 period yet?)  In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” – the felony being lying to the border guard.  Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time.  The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.

Supreme Court to President Bush: Don’t Mess With Texas

Tuesday the Supreme Court slipped the Gordian knot of a case that could have come straight from a law school exam, involving federalism, treaty interpretation, the scope of executive power, criminal procedure, and conflicts between international and domestic law.  The issues in Medellin v. Texas boiled down to: 1) Whether a particular decision of the International Court of Justice is automatically binding on Texas courts and, if not, 2) Whether President Bush made it binding by issuing a memorandum to then-Attorney General Alberto Gonzales.  The Court answered in the negative on both counts by a 6-3 margin.

The result of this decision is that neither the ICJ (the so-called “World Court”) nor the president acting alone can force states to review criminal cases involving foreign nationals.  The underlying treaty at issue – which gives foreign nationals accused of a crime the right to meet with consular officials – is not enforceable in the absence of implementing legislation from Congress.  The ICJ ruling is similarly not self-executing, and does not gain legal effect merely because the president tells the states to abide by it.

The Supreme Court has thus protected America’s carefully calibrated system of federalism and checks and balances by preventing an international court from overriding a state’s duly enacted (and constitutionally sound) law.  Just as importantly, the Court correctly rejected the argument that the president has the power to enforce against the states a treaty that is, in the absence of congressional action, enforceable only by diplomatic means.  Telling state courts how to do their jobs is simply not among the powers of the nation’s chief executive.

Newseum Opens April 11th - Will it Keep Up?

The new Newseum opens April 11th, and its an impressive project in many respects.

It’s a striking but tasteful modern building, with the text of the First Amendment inscribed on its front. The location on Pennsylvania Avenue close to the Capitol has a defiant quality that I admire.

As I walked past yesterday, I observed its display along the sidewalk of current front pages from newspapers around the country and world. It’s a tribute to the importance and vibrancy of the newsgathering enterprise and free speech. Tourists were gathered along the front of the building taking in the headlines.

But I don’t read newspapers. I get my news from a wide array of sources almost entirely online. Sooner or later, I thought as I walked, some state is going to punch a hole in the Newseum’s display, as the state will no longer have a newspaper. Soon enough, most people will get their news in new formats - as I do - from sources and in media of all kinds: blogs, email, traditional news outlets’ online editions, and so on.

Will the decline of the newspaper mislead people into thinking that our vibrant tradition of newsgathering and reporting is on the wane? It’s something to think about.

The “founding partners” of the Newseum are some of the oldest of the old-school establishment media figures. (Good for them, by the way, for supporting this worthy venture.) They and the Newseum’s leadership may think that things are changing for the worse when they’re changing for the better - when news is all around us, in dozens of different formats, provided by tens of thousands of subject-matter experts and on-scene reporters with true local knowledge.

The Newseum’s planned exhibits include room for new media, but by and large they lean toward exalting the newsgathering industry. That industry has had an important role, no question, but I think it is a role that will diminish over time. I hope the Newseum will actively pursue reporting on all the news, not just the news that’s fit to print.

DC’s Apathetic, Complacent Nonproducers ♥ Snow Jobs

I just came across this letter I wrote to the editor of the Washington Post.  Sadly, the editor declined to publish it.  Since the Supreme Court just heard oral arguments about the D.C. gun ban and the meaning of the Second Amendment in District of Columbia v. Heller, it remains relevant:

On January 5, we learned that District officials filed a brief with the Supreme Court [“Gun Law Prevents Harm, D.C. Argues,” Jan. 5] defending the city’s gun ban on the grounds that: the Second Amendment does not protect an individual right to keep and bear arms; the ban “does not deprive the people of reasonable means to defend themselves;” and “less restrictive approaches would not be adequate.”

Fifteen pages later, Colbert I. King [“Outfoxed In the District,” Jan. 5] wrote of the “conditions that threaten the quality of life of all who live in this city: criminals roaming the streets in search of human prey; an apathetic and complacent government workforce; nonproducers ensconced in high places; and elected leaders who fall for snow jobs.”

Draw your own conclusions.

“Montana Wins REAL ID Standoff”

So reports the Missoulian on the Department of Homeland Security’s capitulation in the face of Governor Schweitzer’s resolute rejection of REAL ID.

On Friday, Montana Attorney General Mike McGrath notified the Department of Homeland Security that the state will not comply with REAL ID but will pursue the identity security policies it deems appropriate. McGrath urged DHS not to penalize the state for rejecting REAL ID.

DHS Assistant Secretary for Policy Stewart Baker chose to interpret McGrath’s letter as a request for an extension of the REAL ID compliance deadline and granted it.

In other words, DHS has abandoned any pretense that it can tell states what to do. A showdown with recalcitrant states around the May 11 compliance deadline would require the Transportation Security Administration to disrupt the passenger air travel system, something DHS evidently recognizes to be a losing proposition.

Montana wins.

More reporting at the Threat Level blog.