Topic: Law and Civil Liberties

The Fear Factory

Via Hit and Run, the article from the February 7 Rolling Stone that Ben Friedman blogged about recently is now online. “The Fear Factory” discusses multiple cases where the FBI’s Joint Terrorism Task Forces have brought cases against defendants who “posed little if any demonstrable threat to anyone or anything.” Crucially, the story illustrates how information about the JTTFs’ activities are shrouded behind claims of secrecy.

This is no way to do law enforcement - or to secure a free country.

Judicial Oversight vs. Unchecked Presidential Power

The Wall Street Journal has an editorial today that makes some blatantly misleading assertions about the FISA debate:

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor. We’re told that Hillary Clinton and Barack Obama are co-sponsoring the Dodd amendment, no doubt for political reasons as they compete for left-wing votes in their nomination fight. But they had better hope the effort fails, because as President they’d surely want the same telecom cooperation.

In fact, “the left” got Congress to “ban such wiretaps directly” thirty years ago, when Congress passed FISA in the first place. Glenn Greenwald cites chapter and verse here, but the Journal’s position doesn’t even make sense on its own terms. If warrantless domestic eavesdropping isn’t illegal, then why is the White House pushing so hard for immunity? If the White House or the telecom companies believe that they haven’t violated FISA, or that FISA is unconstitutional, they have every opportunity to make that argument to the courts. If the Ninth Circuit doesn’t give them a fair hearing, the Supreme Court—which now includes two Bush appointees and seven Republican appointees—certainly will. AT&T and Verizon haven’t advanced the argument that warrantless domestic wiretapping legal under FISA because they know perfectly well that it’s not.

The idea that Pres. Obama or Pres. Clinton will be unable to get the “cooperation” of the telecom companies in the future is equally misguided. FISA requires telecom companies to cooperate with the government after the government gets a warrant. What’s at issue in this debate isn’t whether companies should “cooperate”; everyone agrees that they should. The issue is whether the “cooperation” should occur with or without judicial supervision. Some of us believe that judicial supervision of domestic eavesdropping is an important safeguard for Americans’ privacy. Others, apparently including the Wall Street Journal’s editorial board, want to return us to the pre-FISA days when the NSA routinely rifled through innocent Americans’ international communications. Strangely enough, they never seem to phrase it that way.

What Newt Gingrich Can Teach Nancy Pelosi about Protecting Civil Liberties

I’ve got a new article in Reason taking the Democrats to task for their tepid defense of civil liberties. I suggest they take their cue from that noted civil libertarian Newt Gingrich, who in 1996 resisted President Clinton’s demands for expanded wiretapping powers:

Bush’s predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of “roving wiretaps.” The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so “in a methodical way that preserves our freedoms.” Senate Majority Leader Trent Lott vowed that Congress would not “rush to a final judgment” before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today’s Democratic Congress has been far less protective of Americans’ privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about “rushing to judgment.” Indeed, both houses of Congress approved the White House’s preferred legislation with minimal changes within three days of its introduction.

Meanwhile, it seems to be Opposite Day over at the Heritage Foundation, as they chide U.S. senators who want to “include measures in an otherwise bipartisan reform of FISA that would punish US companies that helped US intelligence agencies.” Of course, these senators’ proposals wouldn’t punish anyone; they would merely remove provisions that excuse companies for breaking laws that are already on the books. The companies will only be punished if they broke the law.

Heritage says that these companies “cooperated with government requests to ignore possible technical violations of FISA’s outdated provisions.” That’s a lot of adjectives for one sentence, but it doesn’t change the fact that breaking the law — even a “technical,” “outdated” law — is illegal. I find it surprising that Heritage scholars, who are normally strong champions of the “rule of law” would enthusiastically push the theory that following the law is optional or that the president — who takes an oath to “take care that the laws be faithfully executed” — has the power to authorize other people to break the law on his behalf. He doesn’t, and it would set a dangerous precedent to let those who relied on such assurances off the hook for breaking the law.

Airport Security Technology Stuck in the Pipeline

The Washington Post has a story today on the slow pace of progress in airport security technology. We would see faster development of better, more consumer-friendly security technology if the airlines were entirely responsible for it. Here’s a glimpse of what I said about this in an written debate hosted by Reason magazine a few years ago:

Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.

Would Telco Immunity Be Unconstitutional?

Via EFF, a fascinating article on the possible constitutional issues raised by the push to give telecom companies retroactive immunity for illegal surveillance. Anthony Sebok points out that the courts have historically held that plaintiffs in tort suits have a constitutionally-protected property interest that the court cannot wipe away without compensation. I’m not a constitutional lawyer, so I won’t venture an opinion on whether his argument is right or not. But I think it does remind us of an important fact: the plaintiffs in these lawsuits are real people whose rights have allegedly been violated by these companies.

The FISA debate raises a lot of interesting policy questions about the appropriate relationships among the government, the courts, and the telecom industry. But while those questions are important, we shouldn’t lose sight of the fact that this debate is also about a contractual relationship between those telecom companies and millions of ordinary customers. Customers had a reasonable expectation that those companies would not share their private data with third parties unless doing so was legally required. It appears that certain large telecom companies may have violated that trust. If so, it seems to me that the customers should have their day in court.

Just How Much Is This Online Gambling Ban Costing Us?

My friend Radley Balko has a post over at Reason’s Hit & Run blog about a recent attempt to discover the terms of a trade deal reached in December between the United States and the European Union. The negotiations started because of America’s wish to withdraw its prior commitment to open its market to overseas gambling service providers. (WTO members are within their rights to do that, but they must offer compensatory market openings in other areas). Recall that the details of that deal were, to put it charitably, vague at the time it was announced.

In an effort to shed some light on the agreement, a fellow named Ed Brayton submitted a Freedom of Information Act request to the Office of the United States Trade Representative asking for the details. No joy – the USTR refused his request on the grounds that the “information…is properly classified in the interest of national security pursuant to Executive Order 12958.”

Presumably the USTR would need to publicly disclose the terms of the deal when (if?) it is ratified by the WTO, but in the meantime Mr Brayton is appealing. Also in the meantime, Antigua and Costa Rica have filed (separate) arbitration requests to the WTO over their compensation package (more here, and a warning – some of the ads on this site are possibly not safe for work).

I will be speaking at a panel event at the Institute for Economic Affairs in London on Tuesday on this very subject.

Forced Nudity and Detainee Abuse

Disturbing video clip here of government agents employing forced nudity against a prisoner.

A couple of points about the video clip:

1.  Prisons are places where the government has total control over prisoners.  A prisoner may or may not get access to food, water, clothing, medicine, or even a toilet.  As a practical matter, the jailors call those shots, at least in the short term, which is long enough from the perspective of the prisoner.  Jails are necessary, to be sure, but policymakers should keep such institutions limited.  Not every legal infraction needs to be an arrestable offense.

2.  Remember this video clip the next time someone says, “Well, if the government steps over the line, there will be accountability because any victim of abuse can file a big lawsuit.”  In the absence of the video, how well do you think Hope Steffey’s complaint would hold up in court?  I dare say that without the video many attorneys would refuse to take the case if it came down to the word of one woman against seven deputies.  Even when lawsuits are filed, the government often argues that it enjoys legal immunity.

3.  The men and women who run our jails have very tough tasks to perform.  They must regularly process individuals who are drunk, defiant, and sometimes violent.  Not everyone can perform such tasks.  Thus, constant vigilance is necessary so that discipline does not turn into brutality.

4.  The video is also a dramatic reminder about some of the claims we have heard from the Bush administration with respect to the treatment of prisoners.  President Bush and his legal advisors want to employ “alternative interrogation techniques” against persons they call “enemy combatants.”  One legal memorandum said state agents could employ forced nudity and physical force where the pain induced fell short of that associated with “organ failure” or death.  Since Hope Steffey did not experience pain equivalent to organ failure or death, an incident deemed outrageous in Ohio would be lawful abroad, at least according to that memo.  I don’t know why certain CIA personnel destroyed their own interrogation videotapes, but it was probably because they did not want the American public to see what they were doing.  That is,  disclosure would have had legal and political ramifications that certain persons in the government want to forestall.