Topic: Law and Civil Liberties

Obama’s Constitution

At the beginning of his inaugural address, President Obama observed that

“America has carried on, not simply because of the skill or vision of those in high office, but because we the people have remained faithful to the ideals of our forebears and true to our founding documents.” [my italics]

Although Obama had taught constitutional law for 12 years, the rest of his address raises a question whether he has ever read the Constitution. For he spells out his vision by committing his administration to a wide range of activities for which there is little or no authority in the Constitution.

“We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place and wield technology’s wonders to raise health care’s quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age.”

Moreover, he asserts, our government should be judged by “whether it works – whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified,” not by such “stale political arguments” as whether the policies that might generate these outcomes are constitutional and generate benefits higher than the costs.

Nor are the commitments of his administration to be limited to those of greatest concern to Americans.

“To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow, to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to the suffering outside our borders; nor can we consume the world’s resources without regard to effect.”

“What is required of us now is a new era of responsibility – a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world.”

President Obama is intelligent and charming –- but not wise. The Constitution only authorizes the president to be the chief executive of the federal government and the commander-in-chief of the armed forces, ample challenges to the most skilled person, but the president is not the sole leader of the federal government, the American nation, or the free world. Based on his inaugural address, President Obama has no apparent sense of the limits of what he can and should do –- and that will reduce his effectiveness in addressing those issues within his clear authority.

Little Hope for Change on Judges Until the Judiciary Stops Legislating

In a recent editorial, the Washington Post issued a “hope for improvements” from the vitriol, partisan rancor, and blocking of qualified candidates that has increasingly dominated nominations to the federal bench.  Don’t hold your breath; this is one hope that will not inspire change during the course of the Obama administration.

No, the poisoning of the judicial appointment process won’t end till courts stop acting as policymakers, finding powers in the Constitution that aren’t there and limiting rights that are.  Thus the problem with judicial nominations has less to do with cynical politicians and embittered ideologues than it does with a ”living Constitution” that has been stretched over the years beyond any Founder’s recognition.  In failing to enforce the constraints on federal powers – and to protect the rights retained by the people under the Ninth Amendment (along with those covered by the Fifth Amendment’s takings clause and the Fourteenth Amendment’s privileges or immunities clause, to name but the most maligned) – what Alexander Hamilton called the “least dangerous branch” has devolved into a disfunctional policymaking body that understandably attracts political passions. As various parties wrestle to direct the government’s expanded powers in their favor constituents, as my boss Roger Pilon wrote in 2002, “everything is politics, nothing is law.”

Until we reset the balances of power among the branches and the government again abides by its constitutional parameters, I’m afraid that the partisanship and politics of personal destruction surrounding judicial nominations will continue unabated – to the detriment of the nominees, the judiciary, and the country.  When so much is at stake, it can be no other way.  (You might as well ask elections to be less partisan or otherwise heated.)

But the Post’s editorial is on the right track about one thing: the failure of Republicans to define the word “extremist” when speaking of likely Obama judicial nominees.  Democrats and their hard Left brethren were so unsuccesful in blocking John Roberts and Samuel Alito in large part because they had cried bigot about practically every previous lower-court nominee.  Instead, let’s define what is unacceptable practically and establish an objective standard for judicial nominees from the new administration.  Then it will only be a matter of measuring the degree of support or opposition when analyzing each one’s record.  I suggest the following: “An extremist judge is someone who puts policy views over the text of the law as written, someone whose record shows a propensity for rewriting statutes or the Constitution.”

If you don’t like the result you get when following the law or the Constitution, change the law or amend the Constitution. As Oliver Wendell Holmes said when asked whether he would be doing justice on the Supreme Court, “This is a court of law, young man, not a court of justice.”

NSA Spying on Journalists: We Need a New Church Committee

Last week Keith Olbermann conducted a pair of interviews that gives a troubling look at the NSA’s domestic wiretapping operations. First, Olbermann talked with Russell Tice, a former NSA analyst who tells Olbermann that the NSA had access to all of the American’s peoples’ electronic communications, including those of journalists. Second, Olbermann talked to a New York Times reporter who is currently being pressured by federal prosecutors to divulge his sources for his 2006 book State of War, which focused on the CIA’s recent intelligence-gathering activities. The federal government hauled various former government officials before a grand jury and confronted them with phone records showing conversations between the government officials and Risen. Olbermann suggests that Risen’s phone records might have been obtained by the NSA using the dragnet surveillance program Tice has described.

It’s important to acknowledge that we don’t know if Risen was a target of the NSA program. Federal prosecutors do have legal powers to obtain the phone records of suspects without the knowledge of those suspects. It’s quite possible that the feds got Risen’s records using a valid subpoena under judicial supervision. However, the fact that we don’t know the full story is itself a serious problem. If Tice has described the program accurately and Risen’s phone records were obtained as part of such a surveillance program, that would be a pretty major scandal. Remember that even last year’s extremely permissive FISA Amendments Act didn’t legalize warrantless eavesdropping on purely domestic communications.

The problem is that we don’t know. And unfortunately, this is an area where our system of checks and balances have broken down. Congress has shown little appetite for performing one of its most important functions: investigating the activities of the executive branch to verify that the law is being followed.

Congress wasn’t always so timid. Thirty-five years ago, after another lawless president left office, we had not just one but three investigations of the prior administration: one in the House, one in the Senate, and one in the executive branch. The most successful of the three was the Senate committee that came to be known as the Church Committee. It produced a massive report documenting a ton of illegal activities by the executive branch over the preceding half-century. Gene Healy and I discussed a few of their findings here, and Julian Sanchez has a more thorough summary of the findings here.

In the forthcoming edition of the Cato Handbook on Policy, I argue that Congress should launch a broad investigation of executive branch surveillance abuses modeled on the Church Committee. Only by uncovering the full extent of domestic surveillance activities in the past can we craft sensible safeguards to make sure that abuses cannot happen again. I think there are three crucial factors in making a new Church Committee a success. First, it needs to be bipartisan. That is, it can’t focus merely on the misdeeds of the Bush administration. I recommend starting where the Church Committee left off and including the activities of the NSA, CIA, and FBI under presidents Carter, Reagan, Bush 41, Clinton, and Bush 43. If done right, this would be more than a fig leaf. Bill Clinton was hardly a doctrinaire civil libertarian, and so investigation might uncover real abuses that occurred under Clinton’s watch.

Second, it’s important that as much of the results as possible be made public. The lasting impact of the Church Committee was largely due to the sheer quantity of illegal activities it uncovered. If the Church Committee had only released information about the most egregious violations of the law, advocates of executive power might have been able to spin them as the work of a few bad apples. But because the Church Committee documented a pattern of law breaking involving dozens of people over the course of decades, under Democratic and Republican presidents alike, it became clear that there were systematic problems requiring systematic reforms. The passage of the original FISA Act was one of the most important results of the Church Committee report.

Of course, partisans for the recently-departed Bush administration will paint any effort by Congress to expose these secret programs as a partisan witchhunt that will aid the enemy. And obviously, Congress should be careful not to reveal details that could derail ongoing terrorist investigations or put undercover agents at risk, and the like. But there’s plenty of work Congress could do that is plainly neither a partisan witchhunt nor a danger to national security. The information the Electronic Frontier Foundation has uncovered regarding cooperation between telecom companies and the government would be a good place to start. Maybe Congress will find nothing improper happened there, but it’s important for the public to know what did happen so we can decide for ourselves.

Close Guantanamo Bay

In today’s Cato Daily Podcast, Legal Policy Analyst David H. Rittgers explains why President Obama’s order to close the Guantanamo Bay detention center will serve the fight against terrorism. Rittgers, who served three tours of service in Afghanistan as a special forces officer, says the move to close Gitmo couldn’t come at a better time.

In his own words:

Using closed courts to try suspected terrorists plays the propaganda game in exactly the way our enemies want, and cheapens American justice on the world stage. Terrorism and insurgency constitute violence with a message. To effectively counter terrorists, we must provide a message of our own that denies a propaganda victory to their cause. Meting sound and irreproachable justice is an important way to do that.

While serving as a Special Forces officer in Afghanistan, I took into account the Taliban’s propaganda purposes when planning operations. They didn’t need to kill us to win a small victory. They needed to shoot at us and run away to tell the tale, where fishing stories of exaggerated casualties could encourage ever larger groups of radicalized fighters to attack the Afghans and their American allies.

The Guantanamo Bubble Pops

Within a day of Barack Obama’s inauguration, he has asked the military commissions judges to halt all trials in Guantanamo.  All indications point toward detainees being tried in federal courts.  This is a good decision for a couple of reasons.

First, the military commissions play into the propaganda game that terrorists thrive on.  It confirms their message that normal courts can’t address the threat that they pose.  In fact, the opposite is true.  When you convict a terrorist and lock him up with murderers and rapists, you take away his freedom fighter mystique.

Second, the trial of Omar Khadr was about to start.  Khadr fought alongside a band of Al Qaeda-affiliated terrorists and allegedly killed Special Forces medic Christopher Speer with a hand grenade.  Khadr deserves to be locked up, and letting his military commission trial start would create a Double Jeopardy issue if we interrupt the proceedings somewhere down the road and move him to federal court.

President Obama is also circulating a draft order for the closing of detainee operations at Guantanamo.  The memo sets a 12 month deadline for deciding whether to try, release, or continue holding each detainee.  Good move.

Patent Trolls Are a Symptom of Deeper Problems

The Center for American Progress’s Matt Yglesias emailed to tell me about the latest issue of Science Progress, CAP’s science journal, which includes an in-depth series of articles on patent reform. The article that particularly caught my eye was this piece on patent trolls. In it, Daniel P. McCurdy discusses the controversy over firms whose sole reason for existence is to acquire patents and then use the threat of litigation to extract licensing revenues. The classic patent troll has no products and no employees other than the lawyers required to negotiate licensing deals and file patent lawsuits.

Patent trolls are a real concern. Most famously, in 2006 Research in Motion was forced to pay $612.5 million to a patent-trolling firm called NTP. No one in the case claimed that RIM had directly infringed NTP’s patents. Rather, RIM had independently developed its technology and only found out years after the fact that it might be covered by NTP’s patents. Even more outrageous, the Patent Office had issued “non-final rejections” of the patents at issue in the case, but didn’t move quickly enough to spare RIM from forking over a 9-figure settlement to NTP.

With that said, it’s important to keep in mind that patent trolls are a symptom of deeper problems with the patent system, not the cause of the patent system’s problems. If we had a well-designed patent system in which only high-quality patents were issued, it would be much harder for patent trolls to engage in the kinds of abusive behaviors McCurdy laments. The reason patent trolling is so profitable is that over the last quarter century the courts have expanded patenting into new areas like software and business methods, and dramatically lowered the bar for receiving a patent. As a result, patents that would have been rejected 30 years ago (like this ridiculous patent on removing white space from database entries, which IBM received earlier this month) are now routinely approved by the Patent Office. As a result, patent trolls are able to buy up low-quality patents by the truckload. Even though the vast majority of the patents won’t survive legal challenges, defendants can’t take the chance that one of them might survive and force the firm into a 8- or 9-figure settlement.

Patent trolls make good poster children for the patent system’s dysfunctions, but focusing too much on them ignores the fact that abusing the patent system is a game played by large companies as well. For example, Verizon managed to extort tens of millions of dollars from Vonage to settle a lawsuit over an absurdly broad Internet telephony patent. Verizon, of course, isn’t a “patent troll,” but a competitor interested in hobbling an up-and-coming competitor. Any patent reform needs to address the Verizons of the world too, not just the NTPs.

The problems with the patent system have primarily been caused by the United States Court of Appeals for the Federal Circuit, which has jurisdiction over patent appeals and has aggressively expanded patenting over the quarter-century since its creation by Congress in the early 1980s. In the long run, the only solution to what ails the patent system is to undo the mistakes the Federal Circuit made. The Supreme Court has begun to make progress in that direction with recent decisions such as eBay (which weakened patent trolls by making injunctions harder to get) and KSR (which raised the bar on obviousness). The Federal Circuit’s Bilski decision, which placed new restrictions on “abstract” patents, is another step in the right direction. But there’s much more to be done. Most importantly, the courts need to overturn the Federal Circuit’s decisions from the 1990s that ruled (ignoring contrary Supreme Court precedent) that software was eligible for patent protection. It’s not a coincidence that the most prominent examples of abusive patent lawsuits are almost all in the IT sector.

There are also steps Congress could take, but the changes most frequently discussed—switching to a “first to file” system, for example—aren’t likely to have much of an impact on the problems of low-quality patents. A better option would be to follow Jim Bessen and Michael Meurer’s advice and dramatically increase fees for obtaining and renewing patents, which would give patent holders incentives not to waste everyone’s time with low-quality patents.

Finally, given that the Federal Circuit has been responsible for many of the problems with the patent system, Congress should strongly consider phasing out the Federal Circuit and returning jurisdiction over patent issues to the 11 geographically-based circuit courts. As I argued in an issue of TechKnowledge last year, competition among circuit courts is an important part of our decentralized common-law system of justice, and it has served us well in virtually every other area of the law. The experiment with a unified patent appeals court has not gone well, and Congress should consider reversing its mistake.