Topic: Law and Civil Liberties

Obama Meets Calderón

When president-elect Barack Obama meets Mexico’s Felipe Calderón today, he will be presented with a problem that went largely ignored during the last campaign season: the dramatic increase in drug violence in México. Last year, more than 6,000 people were murdered as a result of clashes between drug-trafficking gangs and the Mexican police and army. The violence is starting to spill across the border into the United States.

Instead of insisting on the prohibitionist strategy that Washington has pursued for decades in the region, President Obama should discuss with Calderón and other Latin American leaders alternatives that aim to reduce the pervasiveness of drug-related violence and corruption in drug production and drug transit countries. Only drug legalization will ultimately end the destabilizing effects of prohibition in this important U.S. neighbor.

Supreme Court Makes It a Little Interesting

The common refrain this Supreme Court term is that, after several years of blockbuster cases—race-based school assignment, partial-birth abortion, the rights of Guantánamo detainees, the D.C. gun ban, etc., etc.—this year the Court is giving the front pages a break. Indeed, as we celebrated the advent of 2009, the only cases guaranteed to make it into the Cato Supreme Court Review were a drug regulation case (Wyeth v. Levine) and one involving the detention of a civilian in the United States as an enemy combatant (Al-Marri v. Pucciarelli). Almost all the cases garnering media and scholarly attention would have been after-thoughts in previous years.

On Friday, however, as it rounded out its docket for the term (no more than a handful more will be added to the list of cases to be argued and decided before the Court recesses in June), the Court gave us four fascinating cases to chew on:

Northwest Austin Municipal Utility District Number One (“NAMUDNO”) v. Mukasey

This is a challenge to the requirement of section 5 of the Voting Rights Act that certain state and local governments, mostly but not entirely in the South, obtain “preclearance” before making any changes affecting voting. A small (3,500 residents) utility district in Austin, Texas, argues that it has never been accused of voting discrimination or other irregularities and should not have to seek federal permission to, for example, move the location of a polling place or coordinate voting for its board with other county or state elections. You may recall that the latest extension of the VRA, in 2006, did not pass without some controversy. Indeed, in our federal system, should certain jurisdictions still be under the Justice Department’s thumb over 40 years after the demise of Jim Crow (and to this extent of micromanagement)?

Ricci v. DeStefano

A group of firefighters (19 white, 1 Hispanic) allege that New Haven city officials racially discriminated against them when they refused to certify the results of two race-neutral promotional exams that yielded racially disproportionate results (i.e., a much higher percentage of whites and Hispanics qualified for promotion than did blacks). As offensive as the facts of the case are, the way that the Second Circuit—a panel including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily dismissed the petitioners’ appeal is even more disconcerting. When the full court voted 7-6 not to rehear the case en banc, Judge José Cabranes (a Clinton appointee) excoriated his colleagues, concluding that “[t]his perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” I won’t get into the weeds of legal analysis here, but Ed Whelan has two excellent posts discussing the Second Circuit shenanigans over at NRO and Stuart Taylor last month wrote a typically hard-hitting piece on it for the National Journal. But again, however the Supreme Court decides this one, it has already provided a potent line of attack on Judge Sotomayor when the next vacancy arises on the high court.

Republic of Iraq v. Beaty

This case asks the simple question of whether U.S courts have jurisdiction over claims regarding misdeeds committed by the Saddam Hussein regime—or whether today’s Iraqi government can assert sovereign immunity. This simple question actually involves the interplay of a host of legislative and executive action that the Court will have to wade through. Beaty joins the Eurodif (international trade, about which I wrote here) and Elahi (treaty enforcement) cases as this year’s leading contributions to the Court’s international law jurisprudence.

Horne v. Flores

Taking up a complicated conflict between the No Child Left Behind Act and earlier legislation, this is the term’s leading education case. The main issue is whether a state, in this case Arizona, which complies with NCLB on English language instruction can still be violating the funding requirements for such instruction imposed by the Equal Education Opportunity Act of 1974. The Ninth Circuit declined to modify an eight-year-old injunction requiring Arizona to spend millions on this instruction and imposing millions in fines. It’s a highly technical case but one with significant ramifications for a key part of President Bush’s domestic policy legacy.

Despite these four grants, however, it is still safe to say that Court shied away from many, many cases that should interest readers of this blog—not least the patent/abuse of state sovereign immunity case called BPMC v. California, which I had earlier urged the Court to accept for review.  I will be commenting further at least on NAMUDNO and Ricci when the Court hears argument and decides them.

The Measure of Our Own Liberties

As you may have heard, the Supreme Court recently granted certiorari to Ali Saleh Mohamed Kahlah al-Marri. The unclassified version of the evidence against him is available in the Rapp Declaration. It reads like a movie plot; I recommend it to you.  


After the 9/11 attacks, the FBI arrested al-Marri, an exchange student at Bradley University in Peoria, Illinois. The government indicted him for using false identification, bank fraud, giving false statements to the FBI, and possession of counterfeit credit card numbers. The government alleges that al-Marri met with Osama Bin Laden, was working with senior Al Qaeda organizers, has a more-than-casual interest in poisons, and was told by his handlers to be in America before September 11th or to forget about executing his mission here. 

Before al-Marri began trial, the government removed him to military custody and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed upon his release). He has since remained in a naval brig in South Carolina. He holds the distinction of being the only domestically detained enemy combatant in U.S. custody.  

The Fourth Circuit heard his habeas claim, releasing a fractured opinion. The panel found, 5-4 on each issue, that (1) the government can detain al-Marri as an enemy combatant; and that (2) al-Marri is owed more process to contest his status as an enemy combatant. 

Wrong on the Law

What happens to al-Marri is important because, according to Bush administration attorneys, the treatment he gets is what any American citizen would get if detained by the government as an enemy combatant. Congress did not give the president domestic carte blanche in the Authorization for Use of Military Force (AUMF) passed after 9/11. Detention of al-Marri as an enemy combatant is directly contrary to Senate rejection of proposed domestic military powers and Patriot Act provisions providing for temporary detention of “terrorist aliens.” 

The Supreme Court should reject this watering down of our essential civil liberties. Judge Motz of the Fourth Circuit does the math for us at page 45 of the Fourth Circuit’s opinion. Four justices (Stevens, Souter, Breyer, and Ginsburg) found in Rumsfeld v. Padilla that the AUMF “does not authorize … the protracted, incommunicado detention of American citizens arrested in the United States.” Justice Scalia filed a dissenting opinion in Hamdi v. Rumsfeld, holding that absent a suspension of the writ of habeas corpus, citizens cannot be held domestically as enemy combatants and must be tried in civilian courts. 

Wrong on Policy

The course we have taken with al-Marri is as wrong on policy as it is on the law. Rather than give suspected Al Qaeda operatives the opportunity to play the martyr and wage propaganda warfare against us, we should be putting them in their proper place. Nobody’s heard from or cared about would-be shoe bomber Richard Reid since his conviction. He received the life sentence he deserved and we all went on with our lives. As Judge William Young said at Reid’s sentencing, “we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.”

The future of counterterrorism policy will be discussed at Cato’s upcoming conference, Shaping the Obama Administration’s Counterterrorism Strategy. Click here for more information.

BART Shooting

There was a police shooting on New Year’s Day by a transit officer.  The shooting, which seems totally unjustified, was filmed by several people with cell phones and the video is now prompting angry protests in Oakland.  The officer worked for the Bay Area Rapid Transit (BART) system.  He resigned Wednesday.

In the past, the police usually received the benefit of the doubt in cases of conflicting testimony.  Now that cell phone cameras are common and rolling, more people are going to be skeptical of police accounts and reach their own conclusions. There is also going to be more accountability when police commit crimes or enagage in other misconduct – and that is a very good thing.

Related Cato work here.

Liberty Tavern? Not So Much

When it opened in 2007, the Liberty Tavern became an instant hit among libertarians in the Clarendon neighborhood of Arlington, Virginia, of which there are quite a few, given the proximity of the Institute for Humane Studies, Mercatus Center, Institute for Justice, and Atlas Foundation. Now, however, the Liberty Tavern has sadly failed its inspiring name. Barista/bartender/blogger and former Cato colleague Jacob Grier explains:

Virginia Governor Tim Kaine is predictably pushing once again for a comprehensive statewide smoking ban. Not so predictably, he’s teamed up with the owners of Clarendon’s Liberty Tavern to launch his campaign:

This year, he believes momentum is on his side. At a news conference Tuesday at a Clarendon tavern, Kaine said the public is increasingly supportive of such bans…

Stephen Fedorchak, owner of The Liberty Tavern, the restaurant where Kaine held his news conference, said he has been in the business long enough to know smoking was once entrenched in bars and restaurants. But those days have passed, he said.

He said he does not regret the decision to ban smoking in his restaurant and said these days “smokers are somewhat used to going out in a … fresh-air environment” and no longer assume they will be allowed to light up.

Fedorchak is happy to be running a smoke-free restaurant. So why does he want the state to force all the bars and restaurants in Virginia to follow the same policy? Why not allow owners and customers a choice? Maybe some people like to smoke at a bar or a restaurant. I don’t, and I prefer to patronize smoke-free establishments. But I don’t feel the need to force my preferences on everyone else by law.

Let’s hope The Liberty Tavern will renounce its support for nanny-state authoritarianism and once again be worthy of its Revolutionary name.

Senator Hatch Gets Less than a Mess of Pottage

With an expanded Democratic majority in Congress, Democrats are pushing to get the District of Columbia a vote in the House of Representatives, instead of the nonvoting delegate that the District has, like Puerto Rico, Guam, American Samoa, and the Virgin Islands. They have one powerful Republican ally, Sen. Orrin Hatch of Utah, former chairman of the Judiciary Committee. He’s introducing the bill in the Senate along with Joe Lieberman.

Now Senator Hatch is a great constitutionalist. On his official website he writes

Adhering strictly to the Constitution and the system of government our Founders outlined is the best guarantee of the freedoms we cherish as Americans. We need legislators, judges, and citizens who understand the view of the Constitution envisioned by our Founding Fathers… .

Our Constitution is an inspired document that has preserved the unity of our nation, protected the rights of its citizens, and made America a beacon of freedom and prosperity for the world. I consider my pledge to defend the Constitution, and all that it stands for, to be among my most sacred duties.

But that poses a bit of a problem for his position on D.C. voting rights in Congress. Article I, Section 2, of the Constitution begins, “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” The District of Columbia is not a state, and so it is not eligible to elect a member of the House of Representatives. Some constitutional issues are complicated. This one is not. States are represented in the House, and the District is not a state.

So why is Sen. Hatch (R-Utah) willing to ignore the clear language of the Constitution in order to give the District of Columbia a vote in the House of Representatives? Because he’s made a political deal that would also give Utah another seat in Congress. That way, you see, the Democrats get another vote from the District, and the Republicans would likely pick up a new Utah seat. The excuse for this deal is that Utah narrowly lost a fourth seat in the 2000 redistricting, arguably because the Census Bureau excludes overseas missionaries from a state’s apportionment count. Utah produces lots of Mormon missionaries. So Congress would increase the number of seats in the House to 437, with the additional seats temporarily assigned to D.C. and Utah.

So this bill is blatantly unconstitutional. And what is Senator Hatch (along with Sen. Robert Bennett and the rest of the Utah delegation, except for new Rep. Jason Chaffetz) getting for this corrupt bargain? Another vote in the House of Representatives for two years. The bill would allow Utah and D.C. to elect representatives to the 112th Congress in November 2010. But Utah’s population growth almost certainly will result in its getting a fourth seat in the 2010 census anyway, so in the regular order of things it would have four seats in the 113th Congress elected in 2012. That means that all this whistling past the Constitution on the part of Utah’s members of Congress is to get one more vote for two years. Meanwhile, of course, the unconstitutional vote for the District of Columbia would be permanent.

It reminds me of the wonderful line from A Man for All Seasons when Sir Thomas More, thinking his friend Richard Rich has sold out his honor for very little, asks him (alluding to Matthew 16:26): “It profits a man nothing to give his soul for the whole world. But for Wales?”

Senator Hatch and the state of Utah would trade the Constitution for one vote out of 437 for two years.