Topic: Law and Civil Liberties

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.

Supreme Court Stands Up for Free Speech in California

Today, by a vote of 7-2, the Supreme Court overturned a California statute that prohibited employers from speaking out on issues relating to unions and labor policy.  The restriction even applied to the payment of salaries, speaking about unions to employees working on state contracts, and meeting with employees on state property to discuss union-related issues.  The statute, passed after intense lobbying by the AFL-CIO, applied to any employers who received over $10,000 in state program funds – including everything from MediCal reimbursements to payments for building roads and schools.  The only significant exceptions all relate to employer speech favoring union activity.

Cato filed a brief supporting the petitioners in this case – the Chamber of Commerce and a group of small business owners – to argue that 1) the case should be decided on labor law grounds because the National Labor Relations Act (NLRA) clearly prohibits state regulations of this kind; but 2) if the Supreme Court reached the First Amendment issue that the Ninth Circuit took it upon itself to decide (and decide erroneously), the statute should be struck down because it imposes an unconstitutional condition on the receipt of state funds and burdens private speech in an area unrelated to the programs for which the funds are given.  In the end, the Supreme Court correctly decided the case on NLRA preemption grounds – that California intruded on an area that is properly left to Congress’s authority –  noting its own 1976 determination that Congress had left unionization activities to be “controlled by the free play of market forces.”  As Justice Stevens aptly stated, California’s statute acted to regulate within “a zone protected and reserved for market freedom” and thus had to be struck down.

Yoo and Boumediene

John Yoo published this article in the Wall Street Journal yesterday about the Supreme Court’s Boumediene ruling. He makes too many claims for me to respond to here in a blog post, but let me address a handful.

1. Yoo: “Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge.”

This is an astonishing statement coming from a former Department of Justice official like John Yoo. I say that because Americans were locked up in military brigs as “enemy combatants.” And their attorneys did file habeas corpus petitions in federal court. The Bush administration responded to those petitions by urging the federal courts to immediately throw them out of court! At one point in the litigation, Bush’s lawyers told the Supreme Court, “The Commander in Chief … has authority to seize and detain enemy combatants wherever found, including within the borders of the United States.” Brief for United States, Rumsfeld v. Padilla (No. 03-1027), p. 38. Yoo and others now seem to be playing down those previous assertions about the executive’s military powers, but the record is there for anyone to check. Bush’s lawyers argued that such American prisoners were perfectly free to “challenge” their imprisonment by filing a habeas corpus petition–again, just so long as the courts pronounced such petitions dead on arrival. See Hamdi v. Rumsfeld, 296 F.3d 278, 283 (2002) (“The government [argues that the courts] may not review at all its designation of an American citizen as an enemy combatant–that its determination on this score are the first and final word.”).

With that background in mind, let’s return to Yoo’s claim that Americans “can challenge the legality of their detentions before a federal judge.” To be non-misleading, one would have to add something like, “as long as the courts repudiate the Bush administration’s claims regarding executive power.” Or I suppose there is another possibility. One could prop up the claim with a clarification like “After all, any lawyer can try to challenge anything.” A lawyer can challenge a speeding ticket by the Colorado State Police by asking a judge in Maine to rule in his favor. The Maine judge isn’t going to take any action because his court has no jurisdiction, but the lawyer is nevertheless free to file his request or “challenge” in Maine, futile as it is.

In context, Yoo seems to be trying to assure readers that the writ of habeas corpus is in place for Americans. Well, only if you ignore the legal precedents the Bush administration has been trying to establish. Or only if you are assured by the fact that Americans have a guaranteed right to file futile legal motions in court.

2. Yoo: “The Boumediene Five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress.”

All war decisions? Should the Supreme Court have sanctioned Harry Truman’s seizure of the steel mills (Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952))? Should the Supreme Court have sanctioned the internment of Americans during World War II (Korematsu v. United States, 323 U.S. 214 (1944)? Should the Supreme Court have affirmed the conviction of Eugene Debs under the Espionage Act for giving an anti-war speech (Debs v. United States, 249 U.S. 211 (1919)? Should the Supreme Court have sanctioned military trials for Americans during the Civil War (Ex Parte Milligan, 71 U.S. 2 (1866)? Perhaps Yoo answers all of these questions in the affirmative, but shouldn’t he make his case for such sweeping war powers more forthrightly?

3. Yoo: “Under Boumediene’s claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.”

Here Yoo wants readers to imagine a judge in robes running between foxholes to review the battle plan. He desperately wants readers of the Wall Street Journal to ask: What in the world can our Supreme Court be thinking? Not to worry. Yoo is simply trying to caricature a position with which he disagrees. I would make two points here. First, I quite agree that judges have no place on the battlefield. However, we need to watch our terms and definitions here. I do reject the Bush administration’s claim that all of the world, including all of the USA is a “battlefield.”

Second, once the dust has settled after a patrol or firefight, is it not appropriate to review the actions of our soldiers? Unless one is prepared to argue that U.S. military personnel are simply incapable of using their weapons unlawfully, war crime allegations have to be adjudicated somewhere, right? In a previously published article, Yoo has called the Abu Ghraib abuses “sadistic.” Given that statement, it seems fair to ask whether the prosecutions and convictions arising from that case were improper because a court “second-guessed” the soldiers’ detention and interrogation methods? And should not U.S. military personnel who believe they have been unfairly prosecuted be able to pursue their legal appeals (in the event of a conviction) beyond the military system to the Supreme Court? If not, why not?

For more on the Boumediene case, go here. For more on the Bush administration’s legal record, go here. For more on John Yoo, go here.

Lawyers Write Laws to Protect Lawyers… I’m Shocked!

As my colleague Tim Lynch, product of Marquette Law School, can attest, graduates of Wisconsin law schools become members of that state’s bar without having to take an exam.  Understandably, out-of-staters (or even Wisconsonians who go elsewhere for law school and then want to return home) might be jealous.  Now a federal judge has granted class status to a group of law school graduates who have earned law degrees outside Wisconsin and want the same right as in-state grads to practice in the state without passing a bar exam.  (The judge also dismissed the suit as moot because the plaintiff had since passed the bar exam, but apparently this plaintiff has since added his wife and another recent law grad and hopes to take another bite at that apple.)

Wisconsin’s policy is obviously little more than a bit of protectionism meant to give its two law schools (Marquette and UW) a competitive advantage over regional rivals (or to retain, at the margins, Wisconsonians who might be tempted to go to other schools which they perceive as better or which offer them scholarships).  But it may not be unconstitutional, at least not on the grounds the suit alleges – as a violation of Congress’s exclusive power to regulate inter-state commerce (state-specific bar rules are unlike the state-specific railroad gauges – which the Supreme Court has ruled to be unconstitutional on Commerce Clause grounds – because each state has its own substantive and procedural laws).  Indeed, it is easy for Wisconsin to argue that its schools are the only ones that specifically teach its laws.  Similarly, though many states allow experienced (typically five years) lawyers to waive into their bar, others (including – surprise, surprise – all major retirement destinations: HI, CA, AZ, TX, FL) require exams of all comers, even, say, a former Supreme Court justice. 

A better argument to counteract all this nonsense can probably be made on equal protection grounds – on which the Supreme Court struck down citizenship requirements in 1973 – but even those formulations have failed in the context of, e.g., state bars that exclude non-permanent resident aliens (there goes my dream of practicing in New Orleans).  In any event, I suspect that, at least in the Wisconsin case, a court would apply “rational basis” review and, for the reasons stated above, find for the state.

A free market solution would, of course, eliminate all the bar membership requirements for legal practice, giving clients the option to hire moderately trained non-lawyers – at cheaper rates! – for relatively simple matters such as simple wills, small claims litigation, uncontested divorces, etc.  Much as lawyers can now advertise which law school they graduated from, the “real” lawyers would be able to say that they’d passed the bar, had their “character and fitness” reviewed by a committee, tried x number of cases, and other indicia that would distinguish them from hucksters selling the legal equivalent of snake oil.