Topic: Law and Civil Liberties

Boumediene Ruling

The Supreme Court issued a very important ruling regarding the “Great Writ” of habeas corpus today.

Lengthy ruling … which I’m still studying, but the key line thus far is this: “The test for determining the scope of this [habeas] provision must not be subject to manipulation by those whose power it is designed to restrain.” George W. Bush and his lawyers purposely kept prisoners off of U.S. soil and argued that habeas was not available to non-citizens beyond U.S. territory (Gitmo).  Today, the Supreme Court rejected that claim.

More here and here.

Civil Liberties in Britain

David Davis, the shadow home secretary in the United Kingdom (that is, the prospective attorney general should the Conservative Party take power), has resigned his seat in the House of Commons to protest Parliament’s approval of a bill that would allow the government to hold terror suspects up to 42 days without charges.

Davis, generally regarded as a Thatcherite, said:

Until yesterday I took a view that what we did in the House of Commons representing our constituents was a noble endeavour because for centuries of forebears we defended the freedom of people. Well, we did, up until yesterday.

This Sunday is the anniversary of Magna Carta, a document that guarantees the fundamental element of British freedom, habeas corpus. The right not to be imprisoned by the state without charge or reason.

But yesterday this house allowed the state to lock up potentially innocent citizens for up to six weeks without charge.

He denounced the bill as “the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom” and went on to cite ID cards, “an assault on jury trials,” and “a DNA database bigger than any dictatorship has” as other elements of that erosion.

Davis said he would run in a special election to reclaim his seat by campaigning “against the slow strangulation of fundamental British freedoms by this government.” Observers expect him to win handily, as the Labour Party has fallen dramatically in the polls. But Conservative leader David Cameron has already appointed a new shadow home secretary, so Davis may have forfeited his leadership role.

I’m reminded of Phil Gramm, a Democratic congressman, who worked with President Reagan and the Republicans to cut taxes and spending in the early 1980s. When the Democratic leadership removed him from the Budget Committee, he switched to the Republican Party. Saying that the voters of his district should have the chance to decide whether they wanted a Republican representative, he resigned, ran in the special election as a Republican, was easily elected on Lincoln’s birthday, and the following year waltzed into the U.S. Senate.

Will Davis find such success by resigning and giving the voters a chance to assess his performance? Only time will tell… In the meantime, you can watch the video of his five-minute speech here.

E-Verify: What’s Going on with the 5.3%?

In a recent post on E-Verify, the system for conducting federal immigration background checks on American workers hired to new jobs, I criticized an assumption on the part of DHS Assistant Secretary for Policy Stewart Baker that the 5.3% of people who receive “final nonconfirmations” from the system are illegal immigrants:

Baker’s conclusion that the 5.3% of workers finally nonconfirmed are illegal workers is without support. The statistic just as easily could show that the 5.3% of law-abiding American-citizen workers are given tentative nonconfirmations, and they find it impossible to get them resolved. More likely, some were dismissed by employers, never informed that there was a problem with E-Verify; some didn’t have the paperwork, the time, or the skills to navigate the bureaucracy; and some were illegal workers who went in search of work elsewhere, including under the table.

Yesterday at a meeting of the DHS Data Privacy and Integrity Advisory Committee, a new data point opened a small window onto the situation of the 5.3%. To review, 94.2% of the workers submitted to the system are confirmed as eligible for work within 24 hours. Of the 5.8% tentatively nonconfirmed, .5% successfully contest their nonconfirmations, leaving us with 5.3% who receive final nonconfirmations for reasons yet unknown.

Staff of the DHS’ U.S. Citizenship and Immigration Services bureau reported yesterday that they had recently added a “doublecheck” on tentative nonconfirmations, asking employers to review the data they had entered for errors. During the two months this has been in place, it has lowered the tentative nonconfirmation rate by 30%. That’s right - 30% of the tentative nonconfirmations had been caused by employers’ fat fingers. (“Fat fingers” is not a knock on employers’ fitness - it’s a techie term for data entry errors.)

If we assume that the figures recited above are from a period before the new fat-finger doublecheck, the 5.8% tentative nonconfirmation rate should have dropped 1.74% since the double-check was implemented. Next, assume (generously) that all of the .5% successfully contesting their tentative nonconfirmations were part of this cohort - the victims of employers’ fat fingers. This leaves 1.24% of workers submitted to E-Verify during this period who were eligible to work but victims of employers’ data entry errors - and who failed to contest their nonconfirmations.

There is plenty of room for error in this extrapolation, and I’ll happily publish refinements or corrections to what I’ve written here, but it looks like more than 1 in 100 employees are tentatively nonconfirmed by E-Verify and go on to final nonconfirmation even though they are eligible to work under the immigration laws. That’s a huge percentage considering that millions of Americans’ employability is on the line. The burden is on DHS and other proponents of electronic employment eligibility verification to figure out what’s going on and to fix it.

E-Verify is not ready for prime time, and we wouldn’t want it even if it was.

Truth is Stranger Than Fiction Even in Hollywood

The LA Times yesterday revealed that Chief Judge Alex Kozinski of the Ninth Circuit, one of the highest-profile jurists this side of the Supreme Court, has stored various sorts of pornography (to put it mildly) on a publicly accessible website featuring sexually explicit photos and videos.  (The site is now down.)  Kozinski conceded in the LAT interview that some of the material was inappropriate, but defended other sexually explicit content as “funny.”  The story came out because – from the department of “you can’t make this up” – Kozinski was slated to preside over the obscenity trial of a filmmaker whose movies featured, among other things, bestiality and defecation.

Kozinski, who is a staunch defender of the First Amendment and generally a great friend of liberty, was assigned the case as part of a rotation in which he and other appellate judges occasionally “sit by designation” in the lower courts.  With the revelation of the judge’s own stash of materials that arguably parallel the defendant’s, we already hear demands that Kozinski recuse himself from this particular case.  Setting aside the merits of obscenity law and jurisprudence or even judging, as it were, Kozinski’s behavior, a reasonable argument can be made for recusal simply because the high-profile nature of the case, combined with the high-profile nature of this strange episode, can easily lead to an appearance of impropriety.  Heck, Supreme Court justices recuse themselves for much less – such as holding small amounts of stock in large corporations that would benefit from a given ruling.  (Then again, they also refuse to recuse themselves for what could be called more, like when Justice Scalia went duck-hunting with Vice President Cheney while a case involving the latter was pending before the Court.)

But that is where this should stop.  While Kozinski surely showed questionable judgment (and/or technological ineptitude – equally surprising given the judge’s penchant for video games and scholarly writings on intellectual property) in not keeping his collection of pictures and videos private, his performance on the bench has been nothing short of exemplary.  While Kozinski’s libertarian instincts at times flummox liberals and conservatives alike, and his colorful personality and writing style are unusual if not welcome in the often staid legal world, the man is a judge’s judge.

Because Kozinski typically shares Cato’s constitutional leanings (with a notable exception on the Fifth Amendment’s Takings Clause), I wrote about him here and here, after he took over the chief judge’s gavel in December of last year.  I concluded my articles thus:

Kozinski’s personal style may rub some of his colleagues the wrong way, but just maybe the court as a whole — so long derided as being out of step with the rest of the country — will, in better reflecting its new chief’s quirks, fall into line.

I clearly wasn’t talking about the sorts of quirks that we now see, but perhaps nothing should surprise us about those who practice law (or sit on the bench) in what many call the “Ninth Circus.”  Regardless of where this episode ends, it is a bizarre turn of events.

Property Rights and Free Speech

Dave Roland at the Show-Me Institute discusses an important case on free speech and property rights:

Tomorrow morning, the Eighth Circuit Court of Appeals will hear arguments in a rather unusual case. Jim Roos graduated from Concordia Seminary in 1970 and eventually founded Sanctuary in the Ordinary, a unique sort of ministry that provides ultra-low-income housing for those who would otherwise have nowhere to go, and tries to teach tenants some of the basics about living as part of a neighborhood. Roos renovated a number of properties in the McRee Town neighborhood, which later came to be targeted for redevelopment by the city of St. Louis. When it became clear that the city intended to use eminent domain to tear down the buildings that Roos’ ministry was trying to use for good, he painted a huge sign on one of them calling for an end to eminent domain abuse.

As it turns out, the city — and especially the Land Clearance Redevelopment Authority (LCRA) — didn’t much care for the criticism. The government cited Roos for illegally displaying a sign without a permit. Even though his right to free speech means that the city had no proper authority to require Roos to seek their permission to express his opinion about eminent domain, Roos complied with the city’s directive and applied for a permit. The LCRA persuaded the city’s Building and Inspection (B&I) Division to deny the permit, because Roos had not first gotten the LCRA’s permission to file the application. When Roos then sought the LCRA’s permission to pursue a sign permit, the LCRA denied his request. With the help of the Institute for Justice, Roos sued to enforce his constitutional rights to free speech.

I wrote about Roos’s ordeals with eminent domain abuse last year in my study for the Show-Me Institute about eminent domain abuse in Missouri.

Defeating Terrorism Without Terrorizing Ourselves

I recently finished reading Michael Sheehan’s new book Crush the Cell: How to Defeat Terrorism Without Terrorizing Ourselves. It jibes with much of what I think about terrorism and terrorism counterstrategy, but there’s more than that to recommend it.

Sheehan has extensive, on-the-ground experience in counterterrorism operations and policy in the federal government, in the military, at the UN, and in New York City, where he did the work that he is obviously the most proud of. The book overflows with recollections and opinions from someone who has been working on fighting terrorism for many years. This focus almost guarantees differences of opinion with someone like me, whose focus is limited government and protection of liberty, but the differences are profitable to explore.

For example, Ben Friedman and I both credited the recent Rolling Stone article arguing that domestic terrorism threats are overblown. Much derision has been poured on domestic terror threats like the “Lackawanna Six” and their obvious incompetence. But Sheehan has a different take:

The case of the Lackawanna Six is an interesting one. To some, these were just some suburban boys who were wanna-be jihadists—certainly not terrorists. But let’s take a closer look. Six young men who grew up in Lackawanna, New York, a small town outside of Buffalo, were inspired to form an al Qaeda cell by a man named Kamal Derwish in the spring of 2001… . All six went to Afghanistan and attended the al Qaeda camps, where they met bin Laden and were very much aware of his responsibility for the East African bombings and that of the USS Cole.

Derwish, a proven fighter and recruiter, was meanwhile sent on to advanced training. While he was gone, it appears that the others’ enthusiasm waned. They returned to the United States, while Derwish, upon completion of his higher training, went back to Yemen. In Yemen, Derwish found himself in the wrong place at the wrong time… . No one knows what that cell might have become if Derwish had returned to the United States to organize them. But these were not the innocent travelers that they’ve been portrayed by some to be.

A good point, and the foundation of Sheehan’s theme: crush the cell. Relative incompetents like the Lackawanna Six and the “muscle hijackers” of 9/11 can be pretty dangerous when activated by a well-trained leader like Mohammed Atta. An essential part of counterterrorism is to crush the cell before they reach that stage.

How do you do that? Sheehan has lots to say about how not to:

Soon after 9/11, the National Counterterrorism Center (NCTC) was created, and a new building was constructed a few miles down the road from the CIA to house its staff. But that wasn’t enough. Later, Congress created the position of Director of National Intelligence (DNI), whose staff was charged with supervising and integrating all other intelligence-gathering agencies: more bureaucracy to manage the swollen intelligence monolith. It was a classic Washington solution to a problem: create a new agency, hire more bureaucrats, and increasingly outsource the work to contractors.

The cost of these new organizations is absolutely staggering, but I’ve yet to see how they’ve appreciably helped the so-called war on terror.

Instead of all this bureaucracy, Sheehan argues for focused intelligence work, about which he has a lot of stories and information to share. There are gems (and a few lumps of coal) throughout the book.

Insight into the economics of security shines through, for example, when he tells the story of the intense inspection his rental car gets at the entrance to the Marine Annex near the Pentagon, comparing it to the Sheraton across the street:

[S]ince 9/11, the military has had an almost unlimited budget … . The Pentagon cites the targeting of U.S. military facilities as the reason for tight security. But hotels have been attacked by terrorists around the world as well, and at least as often as U.S. military bases. But because the hotel has to pay for its own protection, security there is almost nil.

From the coal department, Sheehan casually endorses a national ID card, saying it would “go a long way in controlling who we allow in our midst.” His is not the only good, insightful book on counterterrorism I’ve read that throws in a pro-national ID sentiment at the back end. I think that, given time to do it, folks who recognize the futility of inspecting every shipping container or patrolling every inch of our land and sea borders would recognize the same dynamics at play in trying to use a national ID system for security against terrorism.

But that difference and differences on signals intelligence and eavesdropping are things to work on and discuss as we join in defeating a key product of the terrorism strategy: self-injurious overreaction. Time and again in his book Sheehan emphasizes the importance of avoiding fear and overreaction while crushing terror cells. This is a notion about which lifelong security people and advocates for limited government can speak in unison.