Topic: Law and Civil Liberties

Happy Kelo Day

As our friends at the Institute for Justice will tell you, today is the third anniversary of Kelo v. New London, the property rights case that made my colleague Bob Levy’s list of the “Dirty Dozen” worst cases in modern Supreme Court history.  This was the case where the Fifth Amendment’s “public use” requirement was found to impose essentially no restriction on the government’s eminent domain power.  In some senses this was a lost battle leading to great progress in the war to preserve property rights, with legislatures in numerous states enacting anti-Kelo legislation in the wake of concerted grassroots activism against the decision.

This morning the Supreme Court found a curious way of winking at Kelo Day.  As I was scrolling down the orders list – a many-paged list of administrative actions, mostly cert denials – I happened upon the following notation:

07-1247 GOLDSTEIN, DANIEL, ET AL. V. PATAKI, FORMER GOV. OF NY

The petition for a writ of certiorari is denied. Justice Alito would grant the petition for a writ of certiorari.

Now, it’s exceedingly rare for individual justices to have the clerk record how they voted on a cert petition, but here Justice Alito did just that, and in a case that rang a bell in my mind I couldn’t place.  Then I realized that Goldstein v. Pataki was the appeal by a group of home- and business-owners who are likely to lose their property to a development that is to provide a new home to the the New Jersey Nets plus 16 high-rise office and apartment towers and a hotel.  Thus, not only is Justice Alito as friendly a vote on this issue as was his predecessor Justice O’Connor (who wrote an impassioned Kelo dissent) but he is apparently an emphatic one.  See a bit more here.  This is not necessarily a surprise – and it still leaves us one vote short – but, again, the notation on the order list is a neon light to Supreme Court watchers.

More on REAL ID Grants - DHS’ REAL ID Fervor Is Fading …

I wrote here last week about the limping DHS grant-making process for the REAL ID Act. (Summary: Good money after bad.)

Unsurprisingly, ID card maker Digimarc is touting the spending going to “its” states in a press release. I wrote about the plans of biometric technology company L-1 to acquire Digimarc’s ID card business in a recent TechKnowledge entitled “L-1: The Technology Company in Your Pocket.” (Digimarc recently received a higher offer for its ID card business from a French conglomerate. The appetite for national ID systems is certainly higher in old Europe and elsewhere around the globe than in the United States.)

Late Friday, DHS Assistant Secretary for Policy Stewart Baker posted on DHS’ “Leadership Journal” blog about the grants. Late Friday is the time of the week when releases are least likely to get uptake - are DHS web staff trying to suppress Baker? You’d expect to see something like this on Friday morning, or the night before grants are announced.

Anyway, in his blog post, Baker tries to inflate the money available for REAL ID, claiming that this $80 million is really more like $511 million. It’s not. And if it were, it still would be only 3% of the $17 billion cost of implementing REAL ID.

Of course, Baker claims that the costs of implementing REAL ID are lower now, but that’s only because DHS assumed away much participation in the program. I suppose France could have defeated Germany buy building only 27% of the Maginot line, but it’s doubtful. That’s what a national ID card is - a Maginot line that’s easy to avoid. Baker wants us to believe that a bad security system which is also incomplete is therefore … somehow … good.

Baker’s post, like the rest of DHS’ recent efforts, is a tired effort to prop up REAL ID. He tries to skip past the issues, saying “The arguments for having secure identification speak for themselves.” They don’t, and Baker hasn’t spoken for them either.

DHS’ institutional support for REAL ID grows more and more anemic with each passing day. Witness the thoroughly lame effort of the Department to revive it by banning “willful” refusal to show ID at airports. I now find myself in the position of trying to draw attention to the corpse of REAL ID - I do so because government programs like this have to be really dead before they’re truly dead.

Giving away grants that nobody wants. Defending what can’t be defended. I would be tired too. Congress can make everyone’s life better by rescinding these grants and repealing the REAL ID Act.

No News Is No News

The Court did not issue Heller today, which means it will do so Wednesday (or Thursday if, as expected, it does not get through its 7 remaining opinions on Wednesday).  The encouraging news from today is that Heller is the only opinion outstanding from the cases argued in March, and Justice Scalia is the only justice who has not yet written a majority opinion from that sitting.  That’s no guarantee, but the smart money is he will be the author.

The discouraging news from today is that the Court denied cert in Baylor v. United States, a federalism case in which Cato filed an amicus brief.  Briefly, we supported a pizza-shop robber who was prosecuted not in state court for, say, robbery, but in federal court for ”interfering with interstate commerce” and therefore violating the ”Hobbs Act” (a 1946 anti-racketeering law).  The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria got its flour, sauce, and cheese from various states outside Ohio.  We argued that prosecuting robberies that have such an attenuated effect on interstate commerce destroys the line between the states’ power to punish violent crime and Congress’s power to regulate interstate markets.

Also not decided today were Davis v. FEC, the “millionaires’ amendment” campaign finance case in which we also filed a brief, and Exxon v. Baker, where $1.5 billion in punitive damages is at stake over a super-technical application of maritime law.

Perp Walk for Former Bear Stearns Employees

Today many newspapers ran a front-page photograph of ex–Bear Stearns fund managers walking in handcuffs. It’s called a “perp walk.” Instead of arresting people quietly, the police parade them in handcuffs before the media. The walk refers to when the whole spectacle is orchestrated in advance (i.e. “Are the TV cameras out there?  Okay, let’s park the van 3 blocks away and walk slowly over to the courthouse.”)

Federal Appellate Judge David Sentelle, who was a former prosecutor himself, had a terrific article condemning this pernicious practice.  Here’s an excerpt:

Why does the prosecutor subject the accused to that walk of shame in handcuffs before the media?  It still appears to me to be no more nor less than an attempt improperly to sway the thinking of potential jurors or subject to the punishment of shame an accused who has not yet been convicted of anything…. The real shame, I think, is that of the prosecution more than the defendant. 

Unfortunately, the full article is not available online. 

For related Cato work, go here.

REAL ID Grant Process Collapses, Money Goes to No-Bid Contract

Mickey McCarter at Homeland Security Today has the scoop on REAL ID grants that the Department of Homeland Security is doling out today.

Yes, REAL ID grants. Ten states have passed legislation to bar themselves from participating. (Arizona was the most recent.) And many more have registered their objections to the national ID law. But the Department of Homeland Security is still trying to revive it — this time, by spreading a little money around.

What’s “a little money”? The estimated $85 million in grants is about 0.5% of the $17 billion that it would cost to implement REAL ID, so it’s just a little. But that’s $85 million that taxpayers won’t be getting back.

It’s interesting to see where the money is going, of course.

The breakdown of awards, obtained by HSToday.us, signifies that AAMVA effectively gains a no-bid contract under the awards, as DHS designates it the sole national centralized database of driver’s license information under REAL ID through a grant award to the state of Missouri… . . A competitive grant process could have resulted in multiple hub awards instead of a sole-source contract to AAMVA, sources argue, decentralizing REAL ID information somewhat and encouraging the rise of the most effective database solution between competing vendors.

With enthusiasm for the program distinctly lacking, DHS abandoned its plan to award grants competitively and just divvied up the money state by state.

[A]lthough many states did submit proposals in response to the REAL ID guidance, according to a source knowledgeable of the evaluation process who requested anonymity, many of the state proposals for REAL ID grants were very poor. Evaluators who examined the proposals received by March 7 were surprised by the number that did not even request the funds for the specific program, instead asking for the money to spend on emergency response equipment and other needs.

No-bid contracts and funds for a program the states don’t want? Congress should not allow DHS to throw this good money after bad.

Certifiably Misleading

The FISA “compromise” I alluded to earlier today has now been released. I haven’t yet had time to analyze the text of the bill, but one thing that’s clear from the accompanying summary is that the immunity provisions are as bad as civil libertarians feared. Here’s Steny Hoyer’s summary of the “improvements” to the immunity language:

This new standard [for granting immunity] provides for meaningful review by the District Courts, where the cases are currently pending, of whether companies received written directives from the government requesting post‐9/11 assistance.

It seems to me that this misses the point rather badly. Under our system of government, searches are conducted pursuant to warrants or other court orders. This is an important check on the executive branch’s surveillance powers because it ensures an independent magistrate will review any surveillance activity and block those that aren’t conducted pursuant to the law.

To treat a “written directive from the government” as a substitute for a court order is to abandon this fundamental principle. Once we accept the premise that the executive branch can “authorize” surveillance without judicial oversight, the standard of review for analyzing the resulting “written directives” is entirely beside the point. I don’t care if the Bush administration wrote letters to telecom companies “certifying” that participation in the warrantless spying programs was legal. That’s not how the law works. These are large companies with plenty of lawyers on staff who know this area of law as well as anyone in the executive branch. They could and should have done what Qwest’s former CEO says he did and told the Bush administration to come back when they had a relevant FISA warrant.

It’s a safe bet that no matter what “standard of review” is chosen, the courts will find that the companies did, indeed, act pursuant to a “certification” from the executive branch. Therefore, directing the courts to dismiss the lawsuits if the companies can produce such a “certification” is functionally no different from no-questions-asked immunity. It will mean no real consequences for breaking the law, and no real incentive for companies to be more careful about following the law in the future.

Democrats Determined to Capitulate on Warrantless Spying

In February, the House Democrats won a key victory in their struggle with the Bush administration over amending FISA. Republicans had tried to stampede House Democrats into supporting the Senate’s bad spying bill by sending the bill to the House at the last minute and blocking a temporary extension of the Protect America Act that would have given the House time to have a full debate about the Senate legislation. An exasperated House leadership decided to call the president’s bluff and let the Protect American Act expire. As I wrote at the time, this was the right decision on the merits; the Protect America Act eviscerated judicial oversight of domestic spying activities, and its expiration would leave the president with ample spying authority. Indeed, the president said as much in 2001, saying that the Patriot Act’s revisions to FISA “ ‘recognize the realities and dangers posed by the modern terrorist.”

To be sure, some adjustments to FISA would be beneficial, and the House has twice passed FISA reforms that make the necessary changes. These bills have been stopped by presidential veto threats.

February’s lapsing of the Protect America Act was a victory for Americans’ civil liberties. It was also a political victory for the Democratic party. Once House Democrats began staking out a clear, pro-civil-liberties position and backing up their words with actions, press coverage became a lot more favorable. Whereas earlier press coverage had described Democrats being “outmaneuvered” by Republicans and facing “enduring challenge” on the FISA issue, the coverage began to change once they began standing up to the president. Suddenly, the Democrats were “standing up to President Bush’s fear mongering.” Newspapers reporters began talking to experts (including yours truly) who pointed out that the lapsing of the PAA would have little impact on the Bush administration’s ability to spy on terrorists. It turns out that politicians who speak and act with conviction get better press coverage than those who repeatedly capitulate to their political opponents.

So the House Democrats’ apparent desire to capitulate now leaves me scratching my head. If press accounts of the impending “compromise” are accurate, the president and lawbreaking telecom companies will get essentially everything they’ve asked for. Rather than ordering the courts to dismiss spying lawsuits, the courts will instead be ordered to dismiss the lawsuits if the president asks them to. That’s not much of a difference.

House Democrats won February’s FISA showdown, and they passed a solid FISA bill in March. They ought to stick to the sensible position they’ve held for the last nine months: yes to judicial oversight of domestic spying, no to retroactive immunity for lawbreaking telecom companies.