Topic: Law and Civil Liberties

Dance Like Thomas Jefferson’s Watching

As Thomas Jefferson’s birthday (April 13) approaches – and last night being the first night of Passover, which Jews celebrate to commemorate their deliverance from slavery – I thought I’d comment on a disturbing tale that reminds us again that “the price of liberty is eternal vigilance.”

In celebration of Thomas Jefferson’s (265th) birthday last year, about 20 D.C.-area libertarians gathered at the Jefferson Memorial just before midnight.  The plan was to have a music-through-headphones dance party for the father of the Declaration of Independence (i.e. each person would dance to the tune of his individual iPod). I was actually supposed to attend, but for some reason did not make it.

It was a short-lived party, however, with an ending that would almost certainly have made our nation’s third president frown in disapproval.

Shortly after the silent bopping started, U.S. Park Police officers began to disperse the partygoers. After shooing and pushing revelers (who were drunk only on liberty) off the memorial, one officer confronted the lone remaining dancer, Brooke Oberwetter, and told her to leave.  Oberwetter calmly asked what law or rules she was violating.  The officer provided no explanation but continued to insist that she leave.  Not satisfied with the officer’s response, Oberwetter stood her ground – until the officer pushed her against a stone pillar, handcuffed her, and led her away.

Now, nearly one year later – after the citation against her (for “interfering with an agency function,” whatever that means) was neither dropped nor pursued – Oberwetter filed suit in the U.S. District Court for the District of Columbia against the arresting officer, Kenneth Hilliard, and the Secretary of the Interior, Kenneth Salazar (whose office oversees the Park Police). Oberwetter argues that Hilliard and the Park Police violated her First Amendment rights by interrupting and preventing her expressive activity and freedom of assembly.  She also alleges that here Fourth Amendment rights were violated when she was arrested without probable cause and with excessive force.

The complaint, available here, is a model of legal writing.  Pithy, legally sound, and eminently readable, I cannot recommend it more highly to law students and young lawyers.  This is perhaps not surprising because Oberwetter’s counsel is none other than my friend Alan Gura, who last year successfully argued D.C. v. Heller before the Supreme Court.
Here’s a recent TV news story about the case and here’s Radley Balko’s (formerly of Cato, now at Reason) original post about the incident.

Full disclosure: While our tenures never crossed, Oberwetter is a former Cato employee – and a social acquaintance.  I wish Brooke and Alan the best in their fight against such arbitrary use of government power to oppress basic liberty.  (As Alan told me, a good rule of thumb for police: if you can’t think of any charges, even a few weeks later, it was probably a bad arrest.)  And I hope the incident gets Kevin Bacon thinking sequel.

A (Baby) Step in the Right Direction on Gambling

Semi-good news for lovers of civil liberties and the rule of law. PartyGaming, a UK -based internet gambling company, has reached a deal with the Department of Justice. In exchange for a $105m “fee”, prosecution proceedings against PartyGaming will be dropped.

Why am I only partially excited by this development? Although I think that dropping the case is a positive move, PartyGaming withdrew from the U.S. market when the Unlawful Internet Gambling Enforcement Act was passed, so the case against the company (and therefore its punishment) is, in this non-lawyers opinion at least, dubious. The Wall Street Journal alludes to the retroactive nature of the DoJs case here:

After almost two years of discussions, the U.S. Attorney’s Officer for the Southern District of New York has agreed not to prosecute PartyGaming or any of its subsidiaries for providing internet gambling services to customers in the U.S. prior to the U.S. government banning the online gambling industry in October, 2006.” [italics mine]

Aside from their assault on civil liberties, U.S. laws on internet gambling go against the spirit and the letter of WTO law, and undermine the international trading system that has on balance served the United States well (see more here and an FT piece on the announcement here).

Who’s Blogging about Cato

greenwald-catoOn April 3, Cato hosted a special blogger briefing with Glenn Greenwald, who was here to speak about his new paper on the success of drug decriminalization in Portugal.

Here are a few highlights from bloggers who wrote about it:

  • Jesse Singal, associate editor of Campus Progress, a project of the Center for American Progress

Also, a few links to bloggers who are writing about Cato:

If you are blogging about Cato, let us know by emailing cmoody [at] cato.org or catch us on Twitter @catoinstitute.

TSA Intimidates Political Activist Traveler

Thanks to ever-improving technology, we have a record of what can happen when Americans try to assert their rights against government officials.

The video is a bit ponderous, but when they play the tape of TSA agents interrogating a young political activist who wishes to exercise his right to remain silent, it’s riveting and offensive.

(HT RedState and @JonHenke)

I Love You Too, America

People who don’t know me well don’t realize I’m not American.  I have no accent, am among the most patriotic people you could meet, went to college and law school here, interned for a senator, clerked for a federal judge, worked on a presidential campaign, spent time in Iraq, and speak and write about the U.S. Constitution for a living. I was born in Russia, however, and immigrated to Canada with my parents when I was little.  “We took a wrong turn at the St. Lawrence Seaway,” I like to joke.

The upshot is that, much as I’ve wanted to be American since about age eight — when I discovered that the U.S. governing ethos was “life, liberty, and the pursuit of happiness,” while Canada’s is “peace, order, and good government” — I am a Canadian citizen.  And, because of this country’s perverted immigration system, none of the time I’ve spent in the United States (my entire adult life save a 10-month masters program in London) got me any closer to the unrestricted right to live and work here (a “green card”). 

Don’t worry, I’ve always been legal, through a combination of student, training, and professional visas, but those were always tied to the school or employer, hindering the types of professional activities I could engage in hanging a sword of Damocles over my life. If I lost my job — as so many lawyers have, for example, in this economy — I would have to leave the country where about 95% of my personal and professional network is located.

When I came to Cato, the opportunity presented itself to finally be able to petition for a green card.  (I’ll spare you the overly technical and exceedingly frustrating details.)  Along the way, I even got a certificate saying that the U.S. government — or at least the Department of Homeland Security’s U.S. Citizenship and Immigration Service (what used to be the I.N.S.) — considered me an “alien of exceptional ability.”  I didn’t let this go to my head; when lawyers and bureaucrats come up with a term of art, it means less in real life than, say, one of you readers emailing me that you liked something I blogged here.

Anyhow, not expecting any action on my green card petition for at least another year (based on the processing times posted at the USCIS website), last night I came home to an unmarked envelope in my mailbox.  It was my green card! — complete with a little pamphlet welcoming me to America.

This is quite literally the key to the rest of my life in this wonderful country.  Those who know me well know how huge a deal this is for me personally, how long it has taken, and how many arbitrary and capricious obstacles our immigration non-policy places in the way of “skilled workers.”  (Three years ago I attracted media attention during the Senate immigration debate with the soundbite, “if this reform goes through, I’m giving up law and taking up gardening.”)

I’ve been very fortunate in the opportunities I’ve had and the people I’ve met — including, in significant part, through the big-tent movement for liberty — and I am eternally grateful that this day has finally arrived.  Believe me that I will never take for granted the great privilege that is permanent residence in the United States.  My sincere hope is that America remains a beacon of liberty and that shining city on a hill.

I may well blog or write more about this in the future, but for more on my personal story, see, e.g., here, here, and here.  More importantly, check out Cato’s excellent immigration work here.

School Strips Student of Clothes, Rights

A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school’s drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana’s backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse’s office and ordered her to undress. Not finding any pills in Savana’s pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana’s genital area and breasts also failed to reveal any contraband.

Savana’s mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter’s Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district’s petition for review.

Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings’ suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover.

In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials’ investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.

Safford Unified School District No. 1 v. Redding will be argued at the Supreme Court on April 21.

New Study: ‘Drug Decriminalization in Portugal’

On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm.

In a new study, constitutional lawyer and Salon.com writer Glenn Greenwald examines the Portuguese model and the data concerning drug-related trends in Portugal, and argues that, “judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success.”

Greenwald will speak at the Cato Institute Friday, April 3, about the success of the decriminalization program.

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