Topic: Law and Civil Liberties

100 Years of Failed Drug Prohibition

Dale Gieringer observes that the federal government’s war on (an arbitrary list of) drugs began one hundred years ago this week.  Excerpt:

This week marks the centennial of a fateful landmark in U.S. history, the nation’s first drug prohibition law.  On February 9, 1909, Congress passed the Opium Exclusion Act, barring the importation of opium for smoking as of April 1.  Thus began a hundred-year crusade that has unleashed unprecedented crime, violence and corruption around the world —a war with no victory in sight.

Read the whole thing.

This month Cato released our latest Handbook for Policymakers.  In this volume, David Boaz and I urge Congress to bring this sad chapter of drug prohibition to an end (pdf) or at least get the federal government out of it.  Later this month, Cato’s Ted Galen Carpenter and Ethan Nadelmann of the Drug Policy Alliance, among others, will be discussing the how well drug prohibition is working in Mexico.  For more information about that event, go here.  For more Cato scholarship on the drug war in general go here.

“Redress” = Due Process

In discussions about data-intensive government programs like watchlists, people often talk about the importance of “redress” - giving the public some way to correct information or dispute adverse decisions arising from these programs.

“Redress” is a misnomer that diminishes the importance of the subject at hand. Constitutional Due Process is what’s at stake. So says the Ninth Circuit in the case of Humphries v. County of Los Angeles.

Holder Takes a Small Step toward State Secrets Reform

Brian Beutler, guest-blogging for Matt Yglesias at Think Progress this week, takes a look at the steps the new attorney general, Eric Holder, is taking on the state secrets front. The Supreme Court case that established the modern state secrets privilege involved a lawsuit against the Air Force by three widows whose husbands had died in an aviation accident. The government convinced the Supreme Court that revealing information about the crash to the plaintiffs would endanger national security. But Beutler points out that there was just one problem:

The government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secret.

Unfortunately, the Supreme Court’s ruling is still controlling precedent, and the Bush administration used the state secrets privilege for maximum legal advantage, routinely asserting it in cases related to national security. Attorney General Holder has promised to review these assertions and withdraw those that are not “legally appropriate” circumstances.

This is good as far as it goes, but I agree with Beutler that it doesn’t go far enough. It’s nice to have responsible leaders in the executive branch who don’t abuse their powers, but it’s far more important to put laws in place that will prevent irresponsible leaders from abusing those powers in the future. In the case of the state secrets privilege, that means legislation narrowing the privilege to cases where there’s a genuine danger to national security and giving judges the power to review the relevant secrets in private to verify that it’s being invoked legitimately. Maybe that won’t matter while Eric Holder is in office. But even if Holder doesn’t abuse the state secrets privilege, it’s a safe bet that some future attorney general will. Reforming the privilege now, while memories of Bush administration abuses are fresh, is urgently needed.

The poster child for state secrets reform should be the ongoing Al Haramain case. An Islamic charity accused of funneling money to terrorist organizations was inadvertently handed a document that contained evidence that the government had spied on the charity without proper legal authority. When Al Haramain sued the government for this apparent violation of the law, the government made the astonishing argument that the document’s very existence was a state secret, that Al Haramain must return its copies of the document, and that therefore Al Haramain had no standing to sue the government because it had no evidence that it was the target of illegal surveillance. While we don’t know exactly what was in the document, it appears that rather than containing genuine state secrets, it simply contains politically-embarrassing evidence that the government has been conducting an illegal domestic surveillance program. The law should be changed to make it clear that the government can’t use the state secrets doctrine to get politically embarrassing evidence thrown out of court. And the law should explicitly give judges the power to review secret evidence in for themselves (in private and with appropriate security precautions) and judge for themselves whether the evidence merits state secret protection.

Nat Hentoff Joins Cato

It is official now – Nat Hentoff has joined the Cato Institute as a senior fellow

I spoke with him on the phone a few days ago and said I was looking forward to working with him – to which he replied “we’ve already been working together for years on civil liberties issues.”  True that.  He said Cato was a natural fit for him because we both take principled positions in defense of the Constitution and liberty.  

Nat Hentoff has authored many books and hundreds of articles, but here’s a quick sampling of his writings:  Criticizing President Bush’s attack on habeas corpus; defending Bush’s judicial nominee, Janice Rogers Brown; defending free speech on campus; criticizing the Clinton administration’s handling of the Elian Gonzales matter

Nat Hentoff wrote a regular column in the Village Voice for 50 years until last December.  His farewell column at the Voice is here.  Good stuff.  Cato will be stronger with Nat Hentoff’s passion for liberty and justice.

For more Cato Institute work on civil liberties, go here.

Constitutional Studies Out West

As the Supreme Court takes a winter break and the Obama team gets settled in at the DOJ, I’ll be on the road giving speeches and debating several of the most pertinent legal topics facing the incoming administration.   Here’s the schedule for my upcoming trip to California and Hawaii, which starts tomorrow. All events are open to the public (though the non-law school events typically charge admission):

  • University of San Diego Law School (Warren Hall Rm. 133), February 4 at 12pm – “Judicial Nominations: What’s Gone Wrong and Can It Be Fixed?”
  • University of San Francisco Law School (Kendrick Hall Rm. 101), February 5 at 12:30pm – ”What Can We Expect from the Obama Administration on Judicial Appointments?”
  • North Coast Federalist Society Lawyers Chapter (904 MacDonald Ave., Santa Rosa), February 5 at 7pm – “Libel Tourism: The Next Front in the War on Terror”
  • Princeton Club of N. California (Gordon & Rees, Embarcadero Ctr., SF), February 6 at 12pm – “How I Spent My Summer Vacation: Rule of Law in Iraq”
  • Stanford University Law School (Rm. 95), February 9 at 12:45pm – “What Role Should Foreign Law Play in U.S. Constitutional Interpretation?”
  • SF Federalist Society Lawyers Chapter (Harrington’s, 245 Front St.), February 9 at 5:45 pm– ”What Role Should Foreign Law Play in U.S. Constitutional Interpretation?”
  • Santa Clara University Law School (Bannan Hall), February 10 at 11:45am – “What Can We Expect from the Obama Administration on Judicial Appointments?”
  • University of Hawaii Law School (Rm. 1 or 2), February 12, 2009 at 12:45pm – “Race-Based Government in Paradise? Hawaii v. OHA“ 

If you come to one of these events because you learned of it from this blog post, please come up and introduce yourself.

More on the Calvo Raid

Yesterday, the Washington Post Magazine ran a terrific cover story about the violent drug raid on the home of Cheye Calvo.  Here’s an excerpt:

Cheye and Trinity flipped channels waiting for the 5 o’clock news, certain that – finally – they would be officially cleared. It was Wednesday, Aug. 7, more than a week after the raid. Then-Prince George’s Police Chief Melvin C. High and Sheriff Michael Jackson held a joint news conference to announce the arrests of a FedEx deliveryman and a second man alleged to be involved in a scheme to smuggle marijuana by shipping packages addressed to unsuspecting recipients, including the one to Trinity. Police refused to release their names.

Yet neither High nor Jackson apologized to Cheye, Trinity and Georgia or declared their absolute innocence.

The mayor of Berwyn Heights and his family “most likely, they were innocent victims” of the drug traffickers’ scheme, High said. “But we don’t want to draw that definite conclusion at the moment.”

High and Jackson defended the raid on the mayor of Berwyn Heights as reasonable and restrained, given the information they had at the time. “In some quarters, this has been viewed as a flawed police operation and an attack on the mayor, which it is not,” High said. “This was about an address; this was about a name on a package … and, in fact, our people did not know that this was the home of the mayor and his family until after the fact.”

The chief and sheriff admitted to what Cheye had already deduced: They did not specifically seek a no-knock warrant before breaking down the mayor’s door. Jackson said his deputies were justified in entering the house so forcefully because Georgia screamed when she saw them outside the house, and her cries could have alerted any armed occupants of the home to attack police or destroy evidence.

Deputies were justified in killing Payton and Chase because the dogs had “engaged” them, Jackson said, although he acknowledged under questioning that neither dog had bitten anyone.

Watching accounts of the news conference on television, Cheye grew livid. Not only had the brass refused to apologize or clear them, they were now blaming poor Georgia’s terrified scream for the botched raid. They were saying dogs barking at masked men justified slaughter.

The article notes the Cato study, Overkill by Radley Balko and the raidmap.  Read the whole thing.

Mayor Calvo recounted his ordeal at a Cato forum last summer.

Susette Kelo Tells Her Story

No U.S. Supreme Court decision in the modern era has been so quickly and widely reviled as the infamous Kelo decision, in which the Court ruled that the government could take Susette Kelo’s house in New London, Conn., and the homes of her neighbors, and give the property to a private developer. The courts justified the ruling by saying the new use for her property could generate more taxes and jobs.

Kelo told her story at the Cato Institute on Monday.

For more on Kelo’s story, read Little Pink House: A True Story of Defiance and Courage, by Jeff Benedict.