Topic: Law and Civil Liberties

Obama Appeals for Libertarian Voters

Sen. Barack Obama resumed his winning streak by beating Sen. Hillary Clinton in the Wyoming caucuses after a brief full-court press by both sides. The Wall Street Journal noted one of Obama’s themes in the rugged-individualist Cowboy State:

Tailoring his message to the state’s antigovernment streak, Sen. Obama put new emphasis on his criticisms of the Bush administration’s warrantless wiretaps and other heightened law-enforcement activities implemented as antiterror measures. “You can be liberal and a libertarian, or a conservative libertarian,” Sen. Obama told a crowd of about 1,200 at a recreation center here. But “there’s nothing conservative” about President Bush’s antiterror policies. “There’s nothing Republican about that. Everybody should be outraged by that,” he added. 

He may have been reading some of the articles David Kirby and I wrote about the libertarian vote and the Mountain West:

In the Goldwateresque, “leave us alone” Mountain West, Republicans not only lost the Montana Senate seat; they also lost the governorship of Colorado, two House seats in Arizona, and one in Colorado. They had close calls in the Arizona Senate race and House races in Idaho, New Mexico, Colorado, Nevada, and Dick Cheney’s Wyoming. In libertarian Nevada, the Republican candidate for governor won less than a majority against a Democrat who promised to keep the government out of guns, abortion, and gay marriage. Arizona also became the first state to vote down a state constitutional amendment to define marriage as between one man and one woman….

If Republicans can’t win New Hampshire and the Mountain West, they can’t win a national majority. And they can’t win those states without libertarian votes.

Jeffrey Rosen has praised Obama’s civil libertarian record. Lest we get too excited about Obama’s new libertarian appeal, though, we should note that in his speech he also said he would undermine trade agreements and promised enough goodies from the Treasury to make Ted Kennedy happy.

New Paper on Electronic Employment Eligibility Verification

For all its wonders, technology is not something policymakers can sprinkle on deep-seated economic and social problems to make them go away. Electronic employment eligibility verification - the idea of automated immigration-background checks on all newly hired workers - illustrates this well.

A national EEV program would immerse America’s workers and businesses in Kafkaesque bureaucracy and erode the freedoms of American citizens, even as it failed to stem illegal immigration.

Ultimately, there is no alternative but for Congress to repair the broken immigration system by aligning legal immigration with our nation’s economic demand for labor.

Read about it in my new paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”

The War on the Drug War

IMHO, the best show on television is HBO’s The Wire.  Now the writers and producers are taking their passion to the pages of Time Magazine, where they rail against the injustices of the drug war and call for jury nullification. (HT: Radley Balko’s Agitator).

Cato co-published the most comprehensive book on jury nullification in 1999.

For additional background, go here, here, and here.

FISA and the “Ravenous Trial Lawyers”

One of the common talking points of advocates for warrantless wiretapping is that the debate is really about lining the pockets of “ravenous trial lawyers.” As I’ve said before, this is a particularly silly argument. An op-ed in Sunday’s Chicago Tribune makes this argument particularly well:

The Bush administration and its acolytes now claim that we must give giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. The truth is that telecoms do not need a special deal. These companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. But, in this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?

The Bush administration and its supporters in Congress complain that these lawsuits are simply about money and enriching trial lawyers – suggesting that the litigation should be stopped because of the potential damages that might be awarded in such lawsuits. This criticism ignores the fact that, according to the rules in the federal court, the only way that we could ensure that a federal judge could continue to explore previous violations if the companies simply changed their participation or the government changed or ended the program was to ask for minimal damages. We are not interested in recovering money for ourselves, nor is our counsel, the American Civil Liberties Union of Illinois. We, however, are committed to assuring that these giant companies are punished for violating the law and thus dissuaded from violating the law in the future.

More important, amnesty not only lets the companies off the hook without answering any questions, it assures that the American people will never learn about the breadth and extent of the lawless program. Some seem to suggest that we should not have our day in court because a select few members of Congress have been able to review documents about the spy program operated by the White House. The judgment of a few Washington insiders is not a substitute for the careful scrutiny of a federal court.

This is ultimately not about money, but about the principle that nobody is above the law. I actually think that a reasonable compromise would be to limit damages due to past FISA lawbreaking. This would ensure that telecom companies aren’t driven into bankruptcy while upholding the principle that violating your customers’ privacy—and the law—comes with consequences. Of course, I’d bet money that supporters of warrantless wiretapping wouldn’t accept that compromise, because they, too, know that this is an issue of principle, not money.

More on the Moving Goalposts of FISA

I’ve noted before that the current FISA debate is an example of the goalposts being repeatedly shifted in the direction of ever more executive power and ever less executive oversight. Glenn Greenwald documents just how far the goalposts have been moved over the last 30 years. Back in 1978, the venerable conservative columnist William Safire wrote this of the newly-proposed Foreign Intelligence Surveillance Act:

Predictably, opponents of warrantless wiretapping cheered; the act seems to require a court warrant before tapping can begin. But nobody is reading the fine print, which adds up to the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.

Conservatives like to assist law enforcement, and to curtail espionage; we do not like to make it harder for “our side.” But this natural inclination to help the law must be outweighed by a responsibility to protect the law-abiding individual from the power of government to intrude. And this bill would turn every telephone instrument in every home into a suspected household spy.

Huey Long once said that if fascism ever came to America, it would come in Democratic form; in this bill, Big Brother is on the way, and he is cloaked in the mantle of civil liberties.

Since Safire wrote those words, FISA has been repeatedly amended to further reduce judicial oversight of eavesdropping, most importantly with the Patriot Act in October 2001. The law on the books in early 2006 was even more permissive than the legislation Safire is blasted as an assault on civil liberties. Yet the Bush administration has been so successful at shifting the terms of the debate that even a lot of self-described civil libertarians are conceding that FISA still places too many restrictions on domestic wiretapping activities. The debate is now between a House bill that further waters down judicial oversight over Americans’ international communications and a Senate bill that virtually eliminates judicial oversight of international calls.

One of the lessons here, I think, is that civil liberties won’t be preserved through compromise. The partisans of ever-increasing executive power aren’t likely to go away any time soon. If Congress compromises and agrees to further expand executive wiretapping powers, a future president will come back to Congress and argue that the law is still too restrictive and still more compromises are needed. President Clinton did it in the 1990s. President Bush is doing it now. At some point, Congress just has to say no.