Topic: Law and Civil Liberties

Not Just a Program with Problems, a Program with Constitutional Problems

Recent reporting on the weakness of behavioral profiling in airports has overlooked a key dimension of the problem with it.

According to this story in USA Today, interviewing or patting down 160,000 people with (unreported) indicia of suspicion at airports has resulted in 1,266 arrests. It has failed to find wrongdoing 99.3% of the time. Occasionally, investigations based on behavioral profiling have turned up such things as drug possession and the use of fake identification.

Behavioral profiling has never turned up someone planning harm to aviation security. It has never turned up a person with weapons, guns, bombs, or any other implement that would cause a flight to be delayed, much less brought down.

A 0.7% success rate in finding crime is not relevant. Behavioral profiling has a 0% success rate in finding threats to aviation. Behavioral profiling does not have a proximate relationship to securing against harm coming to commercial aviation.

The Fourth Amendment requires searches and seizures to be reasonable. Courts give law enforcement considerable leeway and often use the stamp “experienced officer” to grant the police broad authority to follow hunches. What we have here, though, is a basis for suspicion that has a 100% failure rate. It never finds what it is looking for.

It may be argued that the consequence of an aviation security breach is so great that behavioral profiling, despite its failings, is “reasonable.” But this argument proves too much.

If national security authorities developed a theory that vans with dented doors are likely to carry nuclear materials, this reasoning would allow the search of any van with dented doors. The consequence of a nuclear blast, of course, is thousands of times higher than an attack on aviation. But a wrong theory is still a wrong theory. The fact that searching vans for nuclear weapons turns up stolen goods 0.7% of the time would not save it. Arguing for the leeway to use a false basis for suspicion because of the size of the potential danger is simply a cleverly cloaked argument for a general warrant, which the Fourth Amendment prohibits.

In the future, there are likely to be more cases where statistical probabilities replace such things as the hunches of “experienced officers” in Fourth Amendment jurisprudence. It is important to remember that suspicion properly arises from observing behaviors that are both consistent with unlawful behavior (the part people remember) and inconsistent with lawful behavior (the part people often forget).

Exhibiting stress in airports — a likely part of behavioral profiling — is consistent with terrorism planning, yes, but it is also consistent with: arriving late, disagreeing with a travel companion, missing a flight, feeling sick, missing loved ones, being disorganized, fearing the security bureaucracy, and so on, and so on, and so on. There is not a rational relationship between exhibiting stress in airports and threats to aviation security. (A discussion of these concepts in the data mining context appears on page 9 of my paper with Jeff Jonas, “Effective Counterterrorism and the Limited Role of Predictive Data Mining.”)

Behavioral profiling is an unreasonable basis for search and seizure. Any arrest based on it is in violation of travelers’ constitutional rights.

Another Drug Raid Death

FBI agent Sam Hicks was killed this week when he and other police officers tried to serve a warrant at 6 am on the husband of Christina Korbe. Korbe says she thought criminal intruders were trying to break into her house. She called 911 and retrieved her handgun. Hicks was shot shortly after he entered the house. 

This will provide an early test for the incoming Obama administration. Will it matter what Korbe really thought under those circumstances? Or will Obama and incoming attorney general Eric Holder simply cave into the pressure to line up behind the police agents and throw the book at Korbe no matter what?

For related Cato work, go here.

Gun Control on Trial

Monday afternoon, the Cato Institute will be hosting Brian Doherty, Senior Editor of Reason magazine.  The topic will be his book, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment.  Christopher Rhee, partner at Arnold & Porter, will be on hand for comments as well.  Tim Lynch, the Director of Cato’s Project on Criminal Justice, will be moderating.

Brian’s book tells the inside story of the litigation that overturned the D.C. gun ban, D.C. v. HellerLibertarian and Second Amendment bloggers have already expressed their excitement, and his previous writings have been discussed at the law blog The Volokh Conspiracy.  As a preview to the event, check out Reason TV’s videos of Brian discussing this historic legal battle, both before and after the decision came down. 

For more information on attending or watching the Cato book forum live, click here.

Measuring “Success” in the War on Drugs in Mexico

The Economist had a story a few weeks ago on the recent developments of Mexico’s war on drugs. According to the magazine:

“At least 4,000 people have been murdered in violence involving traffickers so far this year. Officials say that is a sign that government pressure [on drug gangs] is having an effect.”

Their measurement of success is quite macabre; more people are dying in Mexico, including innocent bystanders who happen to be in the wrong place at the wrong time. This would be a tragedy in any other scenario, except for the twisted logic behind the war on drugs.

In related news, the head of Interpol in Mexico was arrested today for alleged collaboration with organized crime. I can’t wait to see how the drug warriors present this development as a “success.”

Let’s Read the Federalist — and Constitution — Right

Over at Jay P. Greene’s blog, Greg Forster takes issue with those who say that the Constitution does not permit federal excursions like No Child Left Behind. I address these concerns over at the New Talk discussion underway since yesterday, and encourage you to check that out. I offer only one, I think fairly conclusive, rebuttal to Forster here.

Greg calls on Federalist Papers nos. 47-51 to argue that federal intervention in state authority over education is presumptively okay because the principle behind checks and balances requires that each federal branch have some power over the others. He admits that these argument are not about federal authority over states, but invokes the Federalist nonetheless.

Unfortunately, Greg misses the clear point of both the Federalist and Constitution concerning federal-state relations. The federal government is given only specific, enumerated powers (see Article 1, Section 8) and all others are reserved to the states or people. It’s put that simply in the Tenth Amendment, and Madison was very clear in Federalist no. 41 that no reading of the Constitution, not even the vaunted “general welfare” clause, gives the federal government authority to be involved in anything outside of the specific, enumerated powers.

“For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?” Madison asks. “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

There are arguments for why the federal government should be involved in education — though none that are convincing — but they won’t be found in the Federalist Papers.

Peekaboo, I See a Challenge to Sarbanes-Oxley in the Supreme Court

An intriguing case that alleges a high-profile violation of the president’s exclusive power to appoint and remove government officials is winding its way through the courts.  Free Enterprise Fund v. Public Company Accounting Oversight Board challenges the constitutionality of a key part of the Sarbanes-Oxley Act.

Congress passed Sarbox, as the law is called, in the wake of the Enron and WorldCom scandals to protect investors from shoddy accounting practices perceived as being rife in publicly traded companies.  (We now know that Sarbox’s regulatory burden costs the economy much more than the fraud it prevents and detects, but never mind.)  Among other things, the law created the Public Company Accounting Oversight Board – PCAOB, pronounced “peak-a-boo” – a private board exercising government power. Its members are appointed by the SEC, which has limited removal power.  In short, the president has neither any appointment nor removal power, in seeming violation of Article II, section 2 of the Constitution.

On Monday, the D.C. Circuit, now consisting of nine members after Judge Raymond Randolph took senior status as of November 1, split 5-4 in denying en banc review of a panel decision in the government’s favor.  Judges Janice Rogers Brown, Merrick B. Garland, Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel voted against rehearing while Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh supported it.  Interestingly, the three Clinton appointees and one George H. W. Bush appointee voted in the majority, while both Reagan and two of the three George W. Bush appointees dissented.  The other George W. Bush appointee, Judge Brown, who is considered to be the most libertarian (she gave the B. Kenneth Simon Lecture at Cato’s 2007 Constitution Day conference) but also the most inscrutable, turned out to be the wild card.  (But she won’t be the swing vote for long because President Obama will have two vacancies to fill on the court.)

Lawyers for the Free Enterprise Fund, who include our friends at the Competitive Enterprise Institute, had earlier indicated that if they failed to get en banc review, they would seek certiorari in the Supreme Court. The narrow split in the D.C. Circuit probably enhances the chance that the justices would agree to hear the case, except that the Court this year has shown a reluctance to take on especially newsworthy (i.e., both controversial and significant) constitutional cases.

Cato Today

White Paper: “How Did we Get into This Financial Mess?,” by Lawrence H. White

The actual causes of our financial troubles were unusual monetary policy moves and novel federal regulatory interventions. These poorly chosen policies distorted interest rates and asset prices, diverted loanable funds into the wrong investments, and twisted normally robust financial institutions into unsustainable positions.

Op-Ed: “Eliminate U.S. Presence,” by Christopher A. Preble in USA Today

Iraq always was, and still is, a war of choice. The U.S. should choose to terminate the mission and refocus its attention — and, where appropriate, its still-strong military — on the enemies who struck on 9/11.

Op-Ed: “Don’t Dump on Free Trade,” by Ilya Shapiro in Legal Times

On Tuesday, Nov. 4, while most of the country understandably had its attention elsewhere, the Court heard argument in United States v. Eurodif. The case is an appeal from a ruling of the U.S. Court of Appeals for the Federal Circuit holding that contracts with foreign companies to enrich uranium are outside the scope of U.S. anti-dumping law (and their corresponding tariffs) because they’re “service” as opposed to “sales” contracts.

The decision reversed the Commerce Department’s determination to the contrary and prompted a petition for certiorari from United States Enrichment Corp., a government spinoff that dominates the domestic enrichment market and would be hurt by competition from abroad. Although the U.S. solicitor general also requested cert (in which circumstance review is not uncommon), Eurodif is the first time the Court has accepted an international trade case in six years (and only the eighth time in the last two decades).

Podcast: “Obama Should Scrap E-Verify,” featuring Jim Harper