Topic: Law and Civil Liberties

More Eavesdropping

Brian Ross of ABC News is reporting allegations from two whistleblowers who say the federal government eavesdropped on hundreds of international phone calls between Americans. The surveillance continued even when there was no indication of espionage or terrorism.

Question for the White House: Is this another disgraceful news report? After all, it reminds the terrorists that the NSA listens in on calls.

Questions for CIA director Michael Hayden and NSA director Lt. General Keith Alexander: When you say the ‘law’ is always followed, would you remind us as to what, exactly, constitutes illegal eavesdropping? And how many government officials and employees have been disciplined, discharged, or prosecuted for illegal surveillance over the past 10 years?

Question for Congress: What does Sen. Jay Rockefeller (D-WV) mean when he says an oversight hearing may be necessary? How many whistleblowers have to come forward to warrant a hearing?

For more, read Glenn Greenwald. For related Cato scholarship, go here.  

Litigating the 4th Amendment in the Supreme Court

In this first week of the new term, the Supreme Court heard two Fourth Amendment cases.  The first, Herring v. United States, asked whether evidence obtained based on an erroneous arrest warrant (called in by a police clerk from a neighboring county) should be suppressed.  The second, Arizona v. Gant, looked into whether the long-standing “Belton“ rule that a police officer may search the passenger compartment of an arrested person’s car should be set aside when the the search – typically justified on “officer safety” grounds – occurs after the arrested person is handcuffed and locked in the back of a squad car.  The easy legal answers would seem to be yes and yes (though I have qualms about the exclusionary rule – which is fairly unique to America – as a matter of policy), but then it’s hard to craft a readily administrable legal rule that would get you there without creating an equally unjust result in other circumstances.  Hard cases, as they say, make bad law.

But my point is not to argue the finer points of Fourth Amendment doctrine.  Instead,  it is to highlight the difficulty of arguing those points in the rarefied air of the Supreme Court.  As the SCOTUSblog analysis of the arguments in the above cases concluded:

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court.  It is not simply a question of appealing to Justices’ support for, or skepticism of, the exclusionary rule or broad discretion for law enforcement officers.  Many of the Justices are also concerned about need for clear, administrable rules, while others simultaneously resist the inflexibility and illogical results a bright-line rule inevitably gives rise to.  And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure.  And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much.  In the end, the cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes.  But at the same time, it sometimes makes the task of holding together a coalition quite complicated.

In short, separating out death penalty cases, it is in criminal law where the justices can be the least predictable.

Say It Ain’t So, NCC!

Apparently, former President Bill Clinton has been chosen as the next chairman of the National Constitution Center in Philadelphia. In terms of unintentional irony, that’s right up there with “The Nixon Center for Peace and Freedom.”

In the waning days of his presidency, Clinton said of the impeachment struggle that he was, “proud of what we did there, because we saved the Constitution of the United States.” Like his successor, he seemed to see the Constitution in highly personal terms–as a document designed to protect his powers and prerogatives. When it came to others’ rights, eh, not so much.

Here are a few Cato publications you can peruse to get a sense of President Clinton’s fidelity to the Constitution: Tim Lynch’s Dereliction of Duty: The Constitutional Record of President Clinton, my paper on Clinton’s Imperial Presidency , and Roger Pilon’s edited volume The Rule of Law in the Wake of Clinton. Tim Lynch summed it up succinctly:

Although President Clinton has expressed support for an “expansive” view of the Constitution and the Bill of Rights, he has actually weakened a number of fundamental guarantees, including those of free speech and the right to trial by jury and that against double jeopardy. He has also supported retroactive taxes, gun control, and warrantless searches and seizures. The president’s legal team is constantly pushing for judicial rulings that will sanction expansions of federal power. The Clinton White House has, for example, supported the federalization of health care, crime fighting, environmental protection, and education. Clinton also claims constitutional authority to order military attacks against other countries whenever he deems it appropriate. President Clinton’s record is, in a word, deplorable. If constitutional report cards were handed out to presidents, he would receive an F.

Of course, if we were to grade on a curve, we’d have to bump Bill up a few notches compared to the man who followed him. One of “Lowi’s Laws”–maxims coined by the political scientist Theodore J. Lowi–was “the Law of Succession: Each president contributes to the upgrading of his predecessors.” And George W. Bush’s constitutional record certainly makes Bill Clinton’s look less awful by comparison. Tim and I examined the Bush constitutional record in this 2006 White Paper.

But we shouldn’t grade on a curve. And an institution like the NCC, which otherwise does fantastic work “increasing public understanding of, and appreciation for, the Constitution, its history, and its contemporary relevance,” shouldn’t have a man who repeatedly violated his oath of office as its chairman. In fact, choosing any modern president as NCC chair (Clinton succeeds George H.W. Bush as chairman) is utterly wrongheaded. The modern presidency is an office that has burst its constitutional bonds, so virtually any living ex-president has already violated the document the NCC exists to promote.

Downsizing the Veep

Maybe I’m wrong, but I think I’m the source for the only constitutional question asked in Thursday’s vice-presidential debate. Moderator Gwen Ifill asked one that sounded a lot like the one I asked that morning in the New York Times:

IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

IFILL: Vice President Cheney’s interpretation of the vice presidency?

BIDEN: Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there’s a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.

Biden made more of an attempt than Palin did to answer the question Ifill asked, but his answer doesn’t make much sense. Uh, Joe, Article I covers the legislative branch. And the veep’s only power is legislative, presiding over the Senate and breaking tie votes. The Constitution doesn’t grant him any executive power.

And yet here’s Dick Cheney, co-president from at least 9/11/01 on, giving orders to shoot down planes, running large swathes of the War on Terror, and even exercising formally delegated executive powers over the control of information.

As Glenn Reynolds suggests, it’s constitutionally suspect for the president to delegate executive power to officials he can’t remove from office. He also notes that

there may be practical reasons to limit vice presidential involvement in day-to-day executive business regardless of whether we accept the characterization of the Vice Presidency as a legislative office or not. Whether or not the Vice President is seen as a legislative officer, the office of Vice President is something special. The Vice President is, after all, primarily meant to serve as a sort of spare President, and—as with spare tires or backup servers—it may be safest not to put the spare into ordinary service before it’s needed. Presidents are lost in three ways: death, resignation, and impeachment. Vice presidential involvement in policy has the potential to put the “spare” role at risk in at least two of these contexts. When Presidents resign or are impeached, it is often over matters of policy.

Although the risk that a Vice President will be involved in the precipitating events is hard to estimate, it is certainly higher for an activist Vice President than it will be for a Vice President playing a traditionally quiescent role. Though talk of impeaching the current occupants of either office is unlikely to come to anything, it illustrates the risks…. Had Carter been impeached or forced to resign as a result of the Iran debacle, Mondale’s public distance would have been important in preserving his ability to govern.

Whatever one thinks of the impeachment talk of the last few years, two and a half impeachments over our entire constitutional history is probably fewer than we ought to have had. And impeachment becomes more difficult when the president’s replacement is deeply implicated in the activities considered grounds for impeachment.

And there are other problems with a Cheney-style vice presidency as well, problems that ought to be of particular concern to unitary executive fans. One of the more convincing arguments offered by Hamilton against the idea of a plural executive is that “it tends to conceal faults, and destroy responsibility.” He continues,

The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.

That’s certainly been the case over the last seven years. As Barton Gellman has recently shown, information about the so called Terrorist Surveillance Program was so tightly held among Vice President Cheney, David Addington, and their administration allies, that President Bush was unaware until the very last moment that the top echelon of his Justice Department was ready to resign over the illegality of the original program. When an activist vice president deliberately keeps the president in the dark, it can be difficult to discern where the buck really stops.

At the constitutional convention, when Elbridge Gerry objected to the veep’s legislative role, Roger Sherman made the salient point that “If the vice-President were not to be President of the Senate, he would be without employment.” Our early vice presidents didn’t play an important role in the executive branch. Washington kept John Adams at arm’s length from policymaking, and Adams was also frustrated in his attempts to actively manage the Senate as presiding officer. The best view of the vice-president’s constitutional role is that the veep really is supposed to be a bucket of warm [fluid] unless and until he or she is called upon to assume office. And there’s good reason for that. Here’s hoping that Vice President Biden or Vice President Palin will spend less time making policy and more time attending funerals.

First Monday: A New Year at the Supreme Court

Today the Supreme Court begins a new term, and so far there is little for either constitutional scholars or the general public to get excited about.  While two years ago the Court split 5-4 in a full third of its cases (with Justice Kennedy in the majority on each one), and last year produced fewer such decisions (and also fewer unanimous and 8-1 verdicts) but maintained sharp divides on high-profile cases involving Guantanamo Bay, the Second Amendment, and the death penalty, the current term seems to lack any striking features.  Instead we have a raft of cases involving technical issues of statutory interpretation and minor doctrinal adjustment, especially in the areas of environmental and employment law, and criminal procedure.  Even the typically riveting First Amendment cases fall flat, with the FCC’s obscenity regulation turning on administrative procedure and the lone religion matter concerning a quixotic use of private speech in a public forum.  We can expect to see most of these cases decided by broad majorities on narrow grounds, perhaps reflecting the “minimalist” approach Chief Justice Roberts allegedly prefers.  Still, given the small number of cases – the Court filed a leisurely 67 opinions on the merits after argument last year (the lowest number since 1953) and is on pace for not many more this term – it’s hard to read any trends into the Court’s work.  And the last time Court watchers protested this much about the “boring” nature of the docket, October Term 2000, we ended up with the little-known case of Bush v. Gore.  We will see very soon whether next month’s election – or indeed the bailout – will make history repeat itself.

Cult of the Vice Presidency

If you read the papers, “all of them,” like Sarah Palin, you may have seen this, but today’s New York Times features questions for the aspiring veeps. My contribution:

The claim by Dick Cheney that he was exempt from certain disclosure requirements because the vice president was a “legislative officer” has been greeted with outrage. But the main power the Constitution grants the vice president is a legislative one — breaking a tie vote in the Senate.

So, Governor Palin, Senator Biden, doesn’t Mr. Cheney have a point?

But, then, if the vice president is a legislative officer, how can he wield the vast executive powers that Mr. Cheney has exercised, including orchestrating and supervising a warrantless wiretapping program?

Can the vice president shift between branches at his convenience? If not, what, in your view, is the constitutional status of the vice presidency?

— GENE HEALY, the author of “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power

Giving credit where it’s due, I should mention this smart, short law review article by Glenn Reynolds, “Is Dick Cheney Unconstitutional?”

Friend and former Cato colleague Radley Balko has a good one for Joe Biden:

Senator Biden, you’ve been one of the Senate’s most ardent drug warriors. You helped create the office of “drug czar”; backed our failed eradication efforts in South America; encouraged the government to seize the assets of people merely suspected of drug crimes; pushed for the expanded use of racketeering and conspiracy laws against drug offenders; advocated the use of the military to fight the drug war; and sponsored a bill that holds venue owners and promoters criminally liable for drug use by people attending concerts and events.

Today, illicit drugs are as cheap and abundant as they were decades ago. Would you agree that the anti-drug policies you’ve championed have failed? If not, how have they succeeded?

— RADLEY BALKO, a senior editor at Reason magazine

Bloomberg’s Banana Republic

Michael Bloomberg has decided to run for an additional term as mayor of New York. He will do so despite a law limiting mayors to two terms in New York.

Here’s some history. The voters twice endorsed the term limits law in 1993 and 1996. In 1993, the law passed by a margin of 59 percent to 41 percent. In 1996, the City Council tried to change the law to extend term from 8 to 12 years. The initiative making that change lost.

Of course, elected officials predicted disaster. Some agreed then but not now. John Mollenkopf, a well-known political scientist at the City University of New York said: “My initial reaction to the term limits was negative, but the experience of how they have worked has changed my mind. On balance, I think this feature of government does create openings for fresh thinking and new leadership.”

Bloomberg does not plan to put the change in term limits before the voters. Instead, he will try to get the City Council to extend his term. A New York Times survey of City Council members in early September found that a majority might support changing the term limits law. Perhaps that’s not surprising: two thirds of the City Council will be turned out of office in 2009 under the current law. If the mayor’s term can be extended, it will be easier to change the law for City Council members.

New Yorkers are not rolling over for Bloomberg. Gene Russianoff, a spokesman for the New York Public Interest Research Group, said of Bloomberg’s power grab: “Sadly, the move is worthy of ‘democracy’ in a banana republic.” Susan Lerner, executive director of Common Cause/NY, called the mayor’s stance “profoundly undemocratic and deeply disquieting.” Even Establishment types are opposing him, according to the New York Times.

Before his ambition got the best of him, Bloomberg himself “called for the need for restraints on elected leaders, dismissed the notion that anyone is indispensable, and once called an effort to revise the limits ‘disgusting.’”

Let’s see if New Yorkers agree with the mayor.