Topic: Law and Civil Liberties

Changes in Federal Sentencing

The U.S. Sentencing Commission is going to give thousands of drug offenders an opportunity to reduce their sentences.   Yesterday’s move is in reaction to the disparate manner in which federal law handles persons dealing in powder cocaine vis-a-vis persons dealing in crack cocaine.  This is a modest step in the right direction.  The drug war represents a gross misallocation of limited resources (police, courts, jails) and it should be ended immediately.

For Cato work on the drug war, go here.  For Cato work on federal sentencing, go here.  For more information on yesterday’s development, go to Families Against Mandatory Minimums

More Cost-Ineffective Security: Criminalizing Tourism

I’ve written in the past about the costliness of the Western Hemisphere Travel Initiative compared to its small security benefit.

Here’s more cost-ineffective security: Fingerprinting visitors to the U.S.

The Department of Homeland Security announced this week that it would begin collecting 10 fingerprints from foreign visitors to the United States, an extension of the US-VISIT program. This looks like another self-injurious overreaction to the threat of terrorism.

I don’t think collecting ten fingerprints in the US-VISIT program violates civil liberties. People have a diminished right against search and seizure at our international borders. But it is a serious privacy concern for visitors to the U.S.

Their biometrics are entered into a U.S. government database and they have no idea what may be done with that information in the future. DHS keeps that data for 75 years. Yes, lawful visitors to this country, who come to snap pictures of the Statue of Liberty and teach their kids about the United States, go into a U.S. government database for the rest of their lives. It’s just insulting to the millions of good people who want to visit us.

With that, let’s do a rough cost-benefit analysis of collecting 10 fingerprints from foreign visitors to the U.S. It appears to be another security program whose costs outweigh its benefits.

On the costs side of the ledger:

- First, it treats international visitors to the U.S. like criminals. This erodes the goodwill that the United States enjoys in the world, meaning we are less able to convince foreign governments to work with us on all kinds of very important issues. That cost is not easily quantified, but it is substantial. If we can’t get cooperation from Russia on Iran’s nuclear program, for example, that could cost us hundreds of billions or more in the next decade or two.

- More easily quantified is the reduction in lawful trade and travel: The findings of a House bill meant to encourage foreign tourism recite a 56,000,000, or 17 percent, drop in international visitors to the U.S. versus what was expected from 2001 to 2006. Let’s say 10% of this is caused by fingerprinting in the US-VISIT program – people don’t want to come here if we insult them on arrival. The Commerce Department estimates that these visitors would have spent $98,000,000,000 (valued in 2007 dollars) in the U.S. Ten percent of that is $9.8 billion in lost revenue – a significant loss to the economy caused by our harsh treatment of visitors.

- Then there are the costs of running the program – I don’t know what they are, but they’re probably in the tens of millions to $100 million+ per year in Americans’ tax dollars.

Is it worth it? Let’s look at the benefits:

The DHS release says that since 2004, collecting fingerprints in the US-VISIT program has been used “to prevent the use of fraudulent documents, protect visitors from identity theft, and stop thousands of criminals and immigration violators from entering the country.” It gives no hard numbers, but it would have said “tens of thousands” if it was in that range, so let’s say it’s 10,000 violators they’ve caught. ($9.8 billion/10,000=$980,000) Each violator would have had to do almost a million dollars in damage for this security measure to be cost-effective. The average document fraudster, ID fraudster, and immigration violator does nothing near that much harm.

But perhaps the program prevented a single terrorist, or a small group of them, from entering the country, people who would have done $10 billion in damage. This could only be true if we knew in advance exactly which terrorists were coming into the country. But terrorists are fungible. A terrorist organization can select people to send to the U.S. that have no prior participation in terrorism, people who can pass through US-VISIT. With two exceptions, this is what Al Qaeda did for the 9/11 attacks – sent people without any history of terrorism.

US-VISIT can’t prevent a terrorist organization from infiltrating the country – at best, it might delay their activities a couple of weeks while they select the right people to send. Delaying a terrorist attack that causes $10 billion in damage by a month is worth about $42 million. Obviously, spending $9.8 billion to avoid $42 million in damage is not cost-effective security.

My conclusion is that US-VISIT does more harm to the country than it prevents. I welcome suggested refinements to these numbers. Again, this is very back-of-envelope.

Now, should we pass the legislation to make people feel better about us? I’m not sure that’s the solution. The Senate version of legislation to improve our esteem in the world costs $1.80 per person in the United States - $5.64 per U.S. family.

Why spend this money to make people feel better about us when we could make people feel better about us by spending less! US-VISIT doesn’t significantly add to our protections. Given its costs, we should drop it.

Goose:Gander / Illegal Immigrants:Gun Owners

I’ve spent the last few months studying and writing about electronic employment eligibility verification. This is the idea of requiring every employer in the country to check the immigration status of employees against Department of Homeland Security and Social Security Administration databases. A nationwide EEV program, building on the current Basic Pilot/”E-Verify” program, was treated as a matter of near consensus at the beginning of this past summer’s immigration debate, and the Department of Homeland Security continues to promote it.

There are a lot of weaknesses in EEV. Foremost, such a system would be subject to a lot of document fraud, just like today’s Form I-9. Requiring employers to collect these forms and check the documentation of new employees doesn’t do much to control illegal immigration.

If this process were “strengthened” with a national EEV system, continuing document fraud would drive policymakers inexorably toward “strengthening” the identity cards used in the system. Indeed, the leading immigration bill this summer would have required every new hire in America to present a REAL ID-compliant national ID card. EEV requires a national ID.

This is fine by many people who are angered by illegal immigration. But the folks who want EEV and a national ID might want to be careful what they wish for.

A group called Mayors Against Illegal Guns recently sent a letter to all the major presidential candidates asking a detailed set of questions about their positions on gun control. Among them:

… Do you support a change in federal law to require that gun purchasers show Real ID-compliant identification by 2013?

I believe that REAL ID will not be implemented. In fact, the presence of REAL ID in the immigration bill is what killed it. But if EEV goes forward, it could bring REAL ID back from the dead.

With a national ID and a national infrastructure for regulating individual behavior in place, advocates will immediately seek to expand its uses - including to gun control. So it seems that those fervent opponents of illegal immigration who want a national EEV system have a choice: Will you give up your guns to get rid of illegal immigrants?

The End of the Year (but not the Term) at the Supreme Court

Today marks the last day of official business for 2007 at the Supreme Court.  The Court released opinions in three cases that were argued this term,  which join the two last week as the only rulings on the merits so far.  (The very first case argued this term, NY School Bd. v. Tom F., was affirmed without an opinion because the court split 4-4.)

Two of the cases decided this morning definitively clarified that the Sentencing Guidelines are really not binding on the sentencing court.  In Kimbrough v. U.S., the Court, by a 7-2 majority speaking through Justice Ginsburg, reversed the Richmond-based Fourth Circuit and found that a district court may impose a sentence for a crack cocaine offense that departs downward from the Guidelines’ 100-to-1 ratio for crack versus powder cocaine sentences.

In Gall v. U.S., a 7-2 majority speaking through Justice Stevens repeated that appellate courts should review sentencing decisions that depart from the sentencing guidelines using the highly deferential abuse-of-discretion standard, and that the departure in this particular case was not unreasonable (reversing the St. Louis-based Eighth Circuit).

In both the above cases, Justices Alito and Thomas were the lone dissenters.  Justice Alito was concerned that the district courts were not deferring sufficiently to the Sentencing Guidelines (which, while non-binding, must still “be taken into account”) and worried that sentencing disparities would gradually increase.  Justice Thomas continued his disagreement with Booker (the case that made the guidelines merely advisory)  in rejecting the new “reasonableness” standard.

Also of note is that Justices Scalia and Souter filed concurring opinions in the above cases.  Not unreasonably and as he was in his dissent from Booker, Justice Scalia continues to be concerned that judges are unconstitutionally finding facts relevant to sentences.  Justice Souter, who only wrote separately in Gall but stated that his views applied to Kimbrough as well,  suggested that

[T]he best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines … but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.

Strangely, I agree with Justice Souter.

Finally, in Watson v. U.S., a unanimous Court through the pen of Justice Souter held that one does not “use” a gun for purposes of sentencing enhancement when that person receives a gun in trade for drugs.  Justice Ginsburg filed a concurring opinion stating that, according to today’s decision, it is better to receive than to give when the subject is guns and urging the Court to adopt Justice Scalia’s dissent from an earlier case that found that trading a gun for drugs is “use.”

I agree with Justice Ginsburg – and guarantee you that neither my agreement with her nor hers with Justice Scalia is the start of a new trend.

One interesting observation is that in all three opinions decided today, Chief Justice Roberts was in the majority and in all three he used his right to assign authorship to the three most liberal members of the Court.  (Of last week’s two opinions, one also went to Ginsburg, and the Chief wrote the other himself.)  This may mean one of three things: 1) Chief Justice Roberts is trying to curry the favor of his liberal colleagues; 2) Ginsburg, Stevens, and Souter write opinions faster than their colleagues (unlikely because the opinions so far have been simple and uncontroversial); or 3) nothing at all. 

Overall, the Court has now granted cert in 60 cases (which, believe it or not, is 5 ahead of last term) and has heard argument in 26 of them – plus one case of original jurisdiction involving a suit between two states.

The Court’s next official business day, when it may issue orders granting and denying new cases will be Jan. 7.  That day will also see the Court’s argument calendar start the New Year off with the explosive case of Baze v. Rees, which considers the constitutionality of a certain kind of lethal injection (and the granting of cert on which has effectively stayed all executions by lethal injections nationally).  The next time we may see decisions on the merits is Jan. 8.

Media Bias

There’s an interesting new blog called The Monkey Cage written by three political scientists at the George Washington University.  Any blog that takes its motto from H.L. Mencken deserves a look from libertarians, even if the authors are not libertarians (I have no idea whether they are or not).

The blog has only been up for a few days, but it already has some interesting posts on voter ID, campaign finance, and negative advertising in campaigns. The authors don’t follow the conventional wisdom on those issues. For example, they praise the work of Cato visiting research fellow John Mueller on the bias in threat assessments of terrorism. (You can find the short version of Mueller’s work here).

One of the group, John Sides, has a concise and interesting post on media bias.

His claim that newspapers are in the business of confirming the prior beliefs of their readers seems accurate, and yet it confirms the original concern (or, at least, a legitimate concern) about liberal bias: responding to readers or viewers leads to a biased or distorted account of reality.

Is there a market for unbiased reporting? You would think so, but perhaps not. Maybe it doesn’t matter. We may just dump media messages, bias and all, into the marketplace of ideas and trust that something like an unbiased political result will come out the other end.

Reading Sides, some might wonder: Why not relieve the media of market pressure as a way of dealing with bias? That prompts another question: Are NPR and the CPB free of political bias in their reporting and analysis?

The post also prompted the following thought: I have worked on the campaign finance issue for many years now and I have never talked to a reporter from major media who doubted any part, much less the whole, of the reform case. Political scientists have not found that campaign contributions have much effect on members of Congress (see the earlier link). But that has not affected the prior beliefs of reporters . One raw assertion of corruption by Fred Wertheimer outweighes a hundred careful studies of the influence of money on politics. That might suggest that how monolithic liberalism is in the media depends on the issue. But still, do reporters favor reform because they are liberal or because they get to write “Look, corruption!” a couple times a week? Or do they favor reform because it tends to suppress accounts of reality and messages that compete with the product offered by their employers? In other words, do they support regulations that confer directly nonproductive deadweight rents on their employers?

Finally, Sides does not discuss the Milyo-Groseclose study of media bias. Maybe he will in future posts.

Supreme Court and GITMO (Part 2)

Because of widespread interest in yesterday’s Guantanamo case, the Supreme Court released the audio of the oral argument.  Since Justice Anthony Kennedy is considered to be the deciding vote in what will be a 5-4 decision, I thought the most interesting and perhaps pivotal moment came at the very end of the oral argument.  If you have any interest in this debate at all, click on the audio link above and then skip to the good part at the 1 hour, 21 minute mark and just listen to the final three minutes. 

Justice Kennedy asks a question and attorney Seth Waxman begins his response, explaining the “Kafkaesque” procedures that are supposed to be a “substitute” for the writ of habeas corpus.  But then Waxman’s alloted time expires! Had the late Chief Justice William Rehnquist been presiding, he would have immediately pounded his gavel and thanked the attorneys–even if Waxman had been in mid-sentence.  Very strict about the clock, among other things. Fortunately, Chief Justice John Roberts was presiding–because he allowed Waxman an extra minute to complete his powerful closing argument in response to Justice Kennedy’s question.

Previous coverage here.  Podcast here

Supreme Court and GITMO

Today, the Supreme Court will be hearing oral arguments in the case of Boumediene v. Bush  The case represents an important battle over the constitutional doctrine of separation of powers and the “Great Writ” of habeas corpus.

This isn’t the place to lay out all the details, but I will try to boil it down.  The case is about two things: (a) the power of government to put people in prison; and (b) a power clash between the three branches of our government. 

President Bush says the entire world, including every inch of U.S. territory, is a battlefield.  As Commander-in-Chief, Mr. Bush and his military and intelligence agents will decide who must be imprisoned (sometimes the prisoners are called “enemy combatants,” “POWs,” “high value detainees,” or “imperative security detainees”) and the courts should not “second guess” the calls made by members of the executive branch. 

There is a Supreme Court precedent called Eisentrager that says the courts do not have jurisdiction over prisoners–so long as they are non-citizens who are kept in facilities abroad.  Guantanamo was selected as the site, in part, for that legal reason.  The Bush administration has tried to keep any legal claims by prisoners out of federal court.  When the Supreme Court ruled that a federal statute permitted claims in federal court, Bush went to Congress to change that law.  We now have the Military Commissions Act, which tries to withdraw federal habeas corpus jurisdiction from the federal courts–for any case arising out of Guantanamo.  The Court will be hearing arguments on the constitutionality of that law today.

In my view, Guantanamo gets so much media attention that most people end up losing the big picture.  What if the Supreme Court says habeas petitions from Guantanamo can be heard in federal court?  In an ironic twist, such a ruling might prompt Mr. Bush to announce, “I am closing of Guantanamo!” (footnote: The prisoners, however, will be moved to Abu Graib or some other facility).  What then?

“Jurisdiction” refers to the power of a court to decide a case.  Territory is usually a key factor in deciding jurisdiction.  If a prisoner in a California prison sends a habeas petition to a court in Maine, the Maine court will quickly toss it out because it has no jurisdiction.  It does not matter if the Maine judge is convinced of the prisoner’s innocence. 

The Bush administration says it should win the Boumediene case because federal courts do not have jurisdiction over non-citizen prisoners who are beyond U.S. borders.   And they refer us back to the terms of the Military Commission Act and the Eisentrager case.

I believe the Bush administration should lose this case.  The Framers of the American Constitution called the writ of habeas corpus the “Great Writ” because it is the fundamental check on the power of government to put people in prison.  In law, we say this writ “cuts through all forms,” such as territorial jurisdiction.  The courts do have jurisdiction over the “power of control,” which is the President.  The writ operates upon the jailer, not the prisoner.  Thus, if a habeas petition has merit, the court orders the jailer to release his grasp. 

The Supreme Court needs to protect the role of the judiciary in habeas litigation by invalidating the habeas removal provisions of the Military Commission Act.  Once jurisdiction is established, federal courts can move on to the “merits” of the petitions.  Whether any particular prisoner can persuade a court that his imprisonment is a mistake remains to be seen. 

The Cato brief in this case can be found here.  To watch or listen to me debate George Mason University professor Jeremy Rabkin, go here.  I am also participating in an on-line debate over at the Federalist Society.