Topic: Law and Civil Liberties

The Stevens Scandal

Don Boudreaux of George Mason University sent out the following missive about Ted Stevens’s indictment. I don’t see it posted at Cafe Hayek, though it might yet be. But since I can’t improve on his pithy commentary, I offer it here:

I’m delighted to see Sen. Ted Stevens face jail time for his crimes while in office. To charge him with concealing gifts totaling $250,000, however, is the equivalent of charging a confessed mass murderer with jaywalking. If that’s the only way to bring the criminal to justice, fine. But Sen. Stevens’s most significant misdeeds - ones of which he boasts! - are his decades-long success at directing billions of taxpayer dollars to special-interest groups for no reason other than the fact that he possessed the power and position to buy himself even greater security in office by doing so.

Of course, punishing all the criminals guilty of THAT offense would depopulate Capitol Hill.

E-Verify: More Study Needed

Though reauthorization of E-Verify was briefly in doubt, it appears now that congressional authorizers have agreed on a way forward, and that the program needs a lot more study.

A bill on the House floor today would extend E-Verify as a “voluntary” program for 5 years and require much more study of the system and its problems. The consensus at the beginning of the year was that Congress would require every employer in the country to use it by the end of the year.

Since then, flaws in the E-Verify database and tracking system have come to light and it has become more clear that “internal enforcement” of immigration law means tracking and databasing all Americans. My paper on the subject is called “Franz Kafka’s Solution to Illegal Immigration.”

E-Verify is losing its luster. In the reauthorization bill, Congress has tasked the Government Accountability Office with conducting two studies to explore problems with the system and the policy. One will look into the large number of erroneous “tentative nonconfirmations,” their causes, and potential remedies. DHS sought to glide past these issues in its advocacy for E-Verify this year. The other will look at how E-Verify would effect small businesses (and also small non-profits and municipalities). Current users of E-Verify tend to be large employers that are motivated (by threat of enforcement or past enforcements) to comply scrupulously with the law. The already low quality of the E-Verify system’s results will drop when other employers not so motivated begin to use it.

If E-Verify goes forward another five years, technical and programmatic problems will become more clear. But we shouldn’t take our eye off the ball. A national E-Verify system would be used to give the federal government direct regulatory control over law-abiding Americans. Federal authorities would use it to control not just work, but housing, financial services, health care, and access to alcohol, tobacco, and firearms — and these are just the obvious things.

Pots, Kettles, and Sen. Brownback

Via Yglesias, Sam Brownback is outraged that the Chinese government would spy on foreigners on its soil without a warrant. When it was pointed out to him that the United States government is now authorized to conduct warrantless spying in the United States, he had this to say:

We don’t put the hardware and software on hotels. If there is a targeted individual that seems to be a likely prospect of terrorists, they must go through the FISA court and ask for a court to determine that there is probable cause to be able to listen in on that information.

This is a blanket requirement of a hotel to operate a license in China. It is non-specific to anybody. It can be used on journalists. It can be used on athletes – or, excuse me, they’re at the Olympic village – but on their families. It can be used on democracy advocates, human rights advocates, none of which is prohibited. It is real time.

I think there is a huge difference between these two that are taking place.

Well, except there isn’t. All that’s required under the FISA Amendments that the Senate passed a couple of weeks ago is that the government “certify” that the “target” of the surveillance is located overseas. There’s no requirement that the government identify specific targets, and there’s no “probable cause” requirement at all — not even the permissive “agent of a foreign power” standard that had previously governed FISA intercepts.

This means that if the Olympics were held in the United States, the US government could “target,” say, a foreign newspaper such as the Guardian. And as a means of “targeting” the Guardian, it could tap the hotel rooms of all Guardian reporters in the United States.

Now, under the FISA Amendments Act, the government would have to submit a “certification” to a judge describing the eavesdropping plan. And the judge is required to verify that the interceptions are not “targeting” persons located within the United States. But, the government could argue with some plausibility, the “target” of the acquisition is the Guardian, which is located overseas, not the particular reporters who are in the United States. It would be a close legal question. And anyway, the government “is not required to identify the specific facilities, places, premises, or property” in the certification it submits to the judge, so the judge might not even realize that the government is bugging every reporter.

Worst of all, even if the judge rejected the “certification,” the government would have 30 days to continue eavesdropping before it was required to comply with a judge’s order. Since the Olympics are only about 3 weeks long, that means the government could intercept every single call from every single foreign reporter throughout the entire Olympics regardless of what the judge nominally overseeing the eavesdropping said.

Finally, lest we think the United States government would never do such a thing, the FBI repeatedly spied on “democracy advocates” and “human rights advocates” during the Cold War. For example, between 1954 and 1973, the FBI’s New York office alone conducted 433 break-ins of organizations J. Edgar Hoover didn’t like. Targets included the National Lawyers Guild, the Chicago Committee to Defend the Bill of Rights, the American Youth Congress, Vietnam Veterans against the War, Students for a Democratic Society, the Student Non-Violent Coordinating Committee, the Joint Anti-Fascist Refugee Committee, the League of American Writers, the National Mobilization to End the War in Vietnam, the Jewish Cultural Society, the Civil Rights Congress, and dozens of other organizations. And we only know about those break-ins because the head of the FBI field office failed to destroy his records as he had been ordered to do by Hoover. The records of other field offices were destroyed, but there is every reason to think that a similar number of organizations were spied upon in other cities.

Now, I have no evidence that anything of the sort is going on today. But this is precisely why there needs to be judicial supervision of eavesdropping efforts. Because we know from history that without external oversight, power will inevitably be abused. And unfortunately, Sen. Brownback voted for legislation that significantly reduced judicial oversight of wiretapping activities. Brownback is absolutely right to say that domestic eavesdropping shouldn’t occur until the government has demonstrated probable cause to a judge. Too bad he didn’t vote that way.

Another Episode of “Great Moments in Local Government”

Faithful readers of this blog may recall my three-part series (here, here, and here) about the hassle of re-registering a car in the wonderful Commonwealth of Virginia. As you can imagine, that was a libertarian-reaffirming experience. But just in case you were wondering whether the effect was wearing off and I was about to be co-opted by the forces of statism, you can put your mind at ease. I recently had the pleasure of being called for jury duty by Fairfax County.

I have to confess that the jury summons did not cause immediate anguish. I had never served on a jury, or even been part of a jury-selection process, so I was a tad bit curious (I did receive a summons at my work address many years ago from the D.C. government, but since I lived in Virginia - and had never lived in DC - I tossed it in the trash). Maybe I would be selected for a case involving a gun owner, a drug user, or a tax evader, and I could stop a harmless person from being convicted. So I showed up at the Fairfax County Courthouse last week at the announced time of 8:15.

The first thing I noticed - much to my dismay - was that the rent-a-cops at the entrance were confiscating cell phones and blackberries. This would have been a tragedy since I’m addicted to the blackberry and I was planning on filling any dead time with emails, text messages, and Internet browsing. Fortunately, it turned out that they were only seizing devices with cameras, leaving me grateful (for once) that the tight-fisted Cato managers provided me with the oldest and cheapest version on the market.

Having avoided the near-death experience of being without a blackberry, I wander to the jury-assembly room. This is where the day begins to head downhill. The bureaucrats cheerfully thank us for being there and announce that we will be shown a video at 8:45. I’m tempted to ask why we had to show up at 8:15 if things didn’t begin ‘til 8:45, but I bite my tongue. After all, a court system is one of the few legitimate functions of government, so I didn’t want to rock the boat.

Thirty minutes later, it’s finally time for the video. Some of my colleagues give me grief about my mini-documentaries, but they would be tempted to award me an Oscar if they had to watch the syrupy being-a-juror-is-a-wonderful-civic-experience video that I had to endure. But at least it didn’t last too long and there was no offensive pro-government propoganda. Afterwards, the court bureaucrats ask if we have any questions and then tell us that we will get paid $30 per day for our trouble. We’re also told that we could request a form if we wanted to reject the money and instead have it funneled into some sort of Justice Trust Fund. My faith in my fellow citizens was bolstered when only about five percent of the crowd raised their hands and asked for the form.

At this point, we’re then told that someone may call our names at 10:00 to go to a courtroom for potential jury selection. Since it’s not much past 9:00, I’m once again tempted to ask why we had to show up at 8:15, only this time the voice in my head in phrasing the question in a slightly less polite fashion. Only the soothing presence of my blackberry prevents me from making a scene.

Shortly after 10:00, a group of jurors gets called, but I’m not one of them, but hopes of any early dismissal evaporate when my name is part of the second group. So about 30 of us dutifully march to a courtroom, only to then wait for another 20-plus minutes. We eventually get seated, at which point 12 of us (but not me) are called to the jury box and asked questions about impartiality and whether there are any conflicts that would prevent being on the jury.

This is where it got interesting, at least from a libertarian perspective. The court was hearing a civil case involving a contract dispute, and the judge explained (if I understood correctly, which may not have been the case at that uncivilized hour of the day) that the law did not necessarily seek to enforce and uphold contracts. Instead, the goal was to find a utilitarian, cost-minimizing way of settling the dispute. In other words, if the cost of forcing the fulfillment of the original contract was greater than the damage to the wronged party, then somehow jurors were supposed to let that guide their decisions. The potential jurors were asked to raise their hands if they had a problem with the notion that they were supposed to apply the law as determined by the state legislature, not to decide based on their own view of right and wrong.

At this stage, I knew I would not be a juror. Even if all 12 jurors had excuses and could not serve, I would be rejected the moment that the judge asked me to raise my hand if I would be guided by something beyond the capricious choices of the Virginia state legislature. While twiddling my thumbs in the back of the courtroom, I began envisioning the Patrick Henry-style speech I woud give when the judge asked why I would have a problem. In a very anti-climactic development, though, a jury was seated without additional names being called. Then, this morning, my group was not called, so my Walter Mitty fantasy of starting a judicial revolution with a stunning oration will have to wait at least three more years.

Reauthorization Of E-Verify In Doubt

Had you asked anyone knowledgeable in the area a year ago, they would have told you that Congress was going to make “E-Verify,” the federal government’s immigration background check system, mandatory for all employers by the end of 2008.

Well, a headline in National Journal’s Congress Daily yesterday tells quite a different story (paylink): “Reauthorization Of E-Verify Immigration Program In Doubt.”

“House lawmakers and aides are locked in an impasse over legislation that would renew a program employers can use to verify the legal status of their workers,” the story says, “mainly over language that some worry might ultimately kill this means of enforcing immigration laws.”

E-Verify has gone from “greased” to “on-the-chopping-block” in just one short year.

Irony of ironies, it’s the bureaucracy that may kill it. The main holdup is a dispute over how the system would be paid for. The Department of Homeland Security has apparently been sticking the Social Security Administration with the bill for operating the system, and Social Security hasn’t got any spare funds.

This brings together threads from a couple recent posts of mine on E-Verify. I wrote in April about the inability of the Social Security Administration to provide the services it is currently called on to perform. New responsibilities placed on SSA wouldn’t just magically get done.

From a representative of a Social Security workers’ union, I had learned the following about what people could expect when they went to straighten out their E-Verify paperwork with SSA:

What would the process be like? Well, try calling your local SSA field office to find out. The SSA worker rep reported that 50% of those calls aren’t answered because field offices are too busy. Calls to the SSA’s national 800-number don’t go through 25% of the time. It’s not just a phone problem. The agency currently has a backlog of 752,000 on disability rulings. That’s three quarters of a million people who aren’t getting an answer from SSA. It takes 530 days – a little under a year and a half – to get a disability ruling out of SSA.

And I speculated the other day that Stewart Baker’s recent rant against the Society for Human Resource Management might be motivated by bureaucratic jealousy. Now we see that there’s plenty of it to go around. E-Verify isn’t important enough to get federal agencies to play well together.

In truth, I don’t think E-Verify will go under because of this dust-up, but I don’t think it’s going to be the mandatory, nationwide program so many thought either. (I described many ills of such a policy in my paper, “Franz Kafka’s Solution to Illegal Immigration.”)

There are lessons here for Republicans (and some conservatives) who dreamed that they would solve illegal immigration with a big, national, background-checking enforcement system: Bureaucrats own the bureaucracy. You do what they let you do; they do not do what you think they should do. You can’t turn big government to your ends. It only works for its own ends.

“Reforming Fourth Amendment Privacy Doctrine”

Frankly, I don’t expect the scholars, lawyers, and judges who have been steeping in traditional Fourth Amendment doctrine their entire careers to get the thesis of my recent American University Law Review article. But you can! And, eventually, if I do enough work, they will.

Here are some highlights from the introduction to “Reforming Fourth Amendment Privacy Doctrine”:

Since 1967, the Supreme Court and lower courts have relied too heavily on an unreliable test that arose from the leading Fourth Amendment case, Katz v. United States. Distracted by Justice Harlan’s concurrence in the case and befuddled by the concept of “privacy,” courts have ignored the simple rule of the actual holding in Katz and conditioned Fourth Amendment rights on surmises about privacy “expectations.”

Privacy is a real thing that need not be a matter of conjecture. The Katz Court held that personal information was protected by the Fourth Amendment because, as a factual matter, the defendant had kept it private. Installing a wiretap to overcome Katz’s use of law and physics to conceal information was unreasonable without a warrant. The Court did not base its holding on open-ended “expectations” or “reasonableness,” as Justice Harlan’s concurrence suggested, but on the affirmative steps Katz took to conceal that information.

If an individual has secured the privacy of particular information, the Fourth Amendment focuses on the reasonableness of the government’s actions in undoing that privacy, not on the reasonableness of the individual’s expectations.

The FBI Turns 100

This weekend the FBI will celebrate its 100th anniversary. As you might expect, the Bureau is trumpeting its record, i.e., the FBI has protected America from gangsters, Nazis, Communists,  mobsters, terrorists, and so forth.  The image has always been super-competent, super-honest agents who hunt down the evil-doers.

But what about the actual record of the FBI? Sen. Charles Grassley (R-Iowa) has long taken a skeptical view of the FBI and I think his remarks from a 1997 oversight hearing are on the mark:

[M]y father’s occupation was farming in Iowa. And in the ’40s and ’50s, when I was growing up, he taught me to respect the FBI. I came to Washington with a great deal of respect for the FBI. I know that my criticism of senior management, in the last year probably, doesn’t show that I was brought up that way. But it’s not easy for me to think of my father’s respect for the FBI, that they could do no wrong, and find some of the things wrong because, in decades of public service, I have never known an agency that right now is in need of more oversight, including congressional oversight, than the FBI. And that’s after a year of digging into issues that the Bureau has been involved with.

We all respect the good things that the FBI does. We know that there are thousands of agents out there in the field that are putting their lives on the line. And most Americans have the image of the FBI as very good, beyond reproach, the untouchables. The FBI has cultivated that image…. But serious problems with the Crime Lab punctured that image, also Ruby Ridge and Waco have. Beyond the veneer is an ugly culture of arrogance that uses disinformation, intimidation, empire building, to get what it wants.

And I’ve got some documentation, if you’re interested in my feeling about intimidation and disinformation. It resists oversight by an independent body. It resists cooperation and information-sharing with state and local law enforcement. Now I want to show some examples of these. I find that the FBI sometimes uses intimidation tactics when it wants to get its own way. When I have made inquiries, sometimes they simply refuse to respond. That’s not what legitimate oversight is about. It suggests that there’s something to hide. And that’s why problems like the FBI Crime Lab are allowed to exist and fester so long without detection — in that case, maybe about eight years.

While Congress has given the FBI more money than can be spent wisely — for instance, we tripled the amount of money, in just five years, for combatting terrorism. It reminds me of how Congress mindlessly pumped up the defense budget during the ’80s, and all that we did was increase the price of what we bought — hammers, pliers and toilet seats. In this case, I think that we need to carefully examine every nook and cranny of the FBI’s budget to make sure we’re getting what was advertised. And I intend to be a part of that effort in the coming months, because what I have found is that senior management within the FBI puts too much focus on its image and budget and not enough on product, and that product should be law enforcement and public safety.

Like Senator Grassley says, we should acknowledge FBI successes. But a proper appraisal of the Bureau’s actual record must take into account both the good and the bad. Two days ago, Cato hosted an event about the FBI’s record. The panel included the FBI’s official historian, Dr. John Fox, and an outside academic expert, Dr. Athan Theoharis. To view the event, go here.

Here are 10 people/events that the FBI would rather not discuss.

  1. Martin Luther King
  2. Richard Jewell
  3. Brandon Mayfield
  4. Joseph Salvoti
  5. Dr. Frederic Whitehurst
  6. Randy Weaver 
  7. Sibel Edmonds
  8. Anthony Hodgson
  9. Steven Hatfill
  10. The Branch Davidians.

For related Cato work, go here, here, and here.