Topic: Law and Civil Liberties

Week in Review

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Cato Leads Opposition to Fiscal Stimulus

In reaction to statements from Obama administration officials who say “all economists agree” that the only way to fight the economic recession is to go on a massive government spending spree, the Cato Institute took out a full page ad in the nation’s largest newspapers that showed that those words were not true. Signed by more than 200 economists, including Nobel laureates and other highly respected scholars, the statement was published this week in The New York Times, The Washington Post and many other publications.

On the day the ad ran in The New York Times, Cato executive vice president David Boaz added more names to the list of economists who are skeptical of the spending bill.

Commenting on the principles behind the stimulus, Cato adjunct scholar Lawrence H. White and fellow economist David C. Rose discuss why we can’t spend our way out of this mess:

You can’t solve an excessive spending problem by spending more. We are making the crisis worse.

In The Wall Street Journal, Cato senior fellow Alan Reynolds examines the numbers and discovers that each government job created  will cost taxpayers a staggering $646,214 per hire.

The stimulus package now moving through Congress will spend nearly $1 trillion that the government does not have. With the nation already $1.2 trillion in the hole, Cato director of Tax Policy Studies Chris Edwards discusses the sheer illogic behind pushing for stimulus at a time like this:

If I get up in the morning and drink five cups of coffee and that doesn’t stimulate me, I don’t go and drink another five. I’d recognize my addiction problem and start reforming my bad habits. Federal policymakers should do the same.

For more on the stimulus plan, read Edwards’s Tax and Budget Bulletin, “The Troubling Return of Keynes,” (PDF) co-authored by Ike Brannon, former senior adviser to the U.S. Treasury.

During the House vote on the stimulus bill, just 11 Democrats voted against it, leaving Boaz to ask, “What Happened to the Blue Dog Democrats?

“Blue Dogs supported fiscal responsibility at some vague point in the misty past, and they will strongly support fiscal responsibility at some vague point in the future,” writes Boaz. “But right now they’re going to vote to put their constituents another $825 billion in debt.”

Obama Promises to Close Guantanamo Bay Detention Center

Cato legal policy analyst David H. Rittgers explains why he approves of Obama’s choice to shut down the prison at Guantanamo Bay and offers advice on how to proceed with the plan:

The Founders wrote the Bill of Rights after a violent insurgency brought on by government oppression, and the principles contained therein are no weaker while countering today’s terrorists. Using national security courts to try the detainees in Guantanamo opens the door to closed and classified trials of domestic terror suspects. This degradation of essential liberties is unwise and avoids the social function of trials.

Listen to a Cato Daily Podcast interview with Rittgers to learn more about the future of the Gitmo detainees.

In the forthcoming Cato Handbook for Policymakers, Timothy Lynch, director of Cato’s Project on Criminal Justice, lays out a plan for the future of our government’s strategy for dealing with terrorism. (PDF)

Gore Global Warming Hearing Goes on Despite Snowstorm

Undeterred by a snowstorm that shut down schools and gave federal workers “liberal leave,” the Senate Foreign Relations Committee held a hearing on global warming this week with star witness Al Gore. Gore promoted ways to end climate change through cap-and-trade legislation and investment in renewable energy, reported U.S. News and World Report.

In a Cato Policy Analysis, author Indur Goklany offers his commentary on how government should handle climate change.

Cato senior fellow in environmental studies Patrick J. Michaels offers his analysis on climate change, and how the international community should react.

Appearing on Fox News, Michaels, who is a former Virginia state climatologist, asserts that when it comes to climate change, there is no immediate emergency. For more, don’t miss Michaels’s new book, Climate of Extremes: Global Warming Science They Don’t Want You to Know, co-authored with Robert C. Balling Jr.

Al-Marri Is (Probably) a Terrorist — We Should Have Tried Him

The Justice Department received an extension from the Supreme Court in the pending appeal of Ali Saleh Mohamed Kahlah al-Marri, an exchange student who allegedly arrived in the United States on September 10th, 2001, as an Al Qaeda sleeper agent. He is the only person presently domestically detained as an enemy combatant, a practice I oppose. The Obama administration is taking the extra time to reconsider the government’s position.

The Fourth Circuit previously held that al-Marri can continue to be detained as an enemy combatant. The unclassified version of the evidence against him is available in the Rapp Declaration. I highly recommend you read the whole thing. Al-Marri is (probably) a sleeper agent for Al Qaeda. We should have tried him.

The fight against Al Qaeda is part military, part law enforcement. Whichever approach we use, this is a struggle where the population is not incidental to the battlefield, the population is the battlefield. Insurgencies and terrorism are 10% tactical, 90% propaganda. By making a legal martyr out of al-Marri, we give him a propaganda victory he has not earned.

The FBI did exactly what we want domestic terrorism investigators to do: it gathered evidence to produce an indictment. The government should have followed through with prosecution instead of moving him to a military brig. We prosecute domestic terrorists for criminal actions, and al-Marri should be treated no differently. 

Former FBI special agent and terrorism expert Mike German infiltrated two domestic terror organizations and brought charges against their members. As German says in his excellent book, Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent, prosecuting terrorists for fraud charges should not give us pause. 

As an FBI agent my counterterrorism investigations never resulted in anyone being charged with terrorism. The terrorists I arrested were charged with specific criminal offenses; possessing and transferring illegal firearms and explosive devices, illegally using firearms and destructive devices, conspiring to use illegal firearms and destructive devices, and conspiring to violate civil rights. Terrorists use these crimes to accomplish their political goals. Once I had evidence of their illegal activities, I could bring charges against them. Certainly the motive behind their conduct came into play to prove they had the requisite criminal intent, but the laws I enforced had absolutely nothing to do with the terrorists’ ideology.

German also points out that terrorists rely on their claim to be something more akin to soldiers than criminals to maintain political legitimacy. IRA terrorists held by British authorities staged a hunger strike to retain treatment as “prisoners of war” rather than “criminals.” Ten of them willingly starved to death rather than be lumped in with murderers and rapists, the goal of the British “criminalization” strategy. As German writes:

The reasons for the hunger strike reveal much about the IRA and about terrorists in general. They didn’t strike over the anti-Catholic discrimination that led to the civil rights movement. They didn’t strike over the RUC’s police abuse or the stationing of British troops in Northern Ireland. They didn’t strike over being arrested without charges, interned, and tortured. They didn’t strike over indefinite detentions or even over Bloody Sunday. They knew all those things helped their cause. They went on hunger strike because the British government was going to make them look like criminals.

Khalid Sheikh Mohammed, architect of the 9/11 attacks, sees the writing on the wall — the Obama administration intends to close down the Military Commissions and try him and his co-conspirators in a traditional court of law. This is why he tried to plead guilty and become a martyr for his cause. If we convict al-Marri and Khalid Sheikh Mohammed in federal court and not a Military Commission or one of the proposed national security courts, the Al Qaeda boogey-man is revealed as a thug, not a noble Muslim soldier. 

Mike German’s recent Cato podcast with Caleb Brown is here. German also spoke on a panel at Cato’s recent conference, Shaping the Obama Administration’s Counterterrorism Strategy. The video file is available here and the podcast can be downloaded here. Cato filed an amicus brief in the al-Marri case with the Constitution Project and the Rutherford Institute.

“Fair Pay Act” Will Only Further Damage Economy

When President Obama signs the Lilly Ledbetter Fair Pay Act, he will be fulfilling a campaign promise but undermining the American economy.  This bill is not about sex discrimination — paying men and women different wages for the same job has been illegal for nearly half a century — but rather about statutes of limitations.  How long after an incident of discrimination should someone be allowed to sue?  The Supreme Court ruled that an employee has six months after a company’s initial pay decision to file a discrimination claim.  While this was a fair reading of existing law, critics legitimately questioned whether the law itself unfairly foreclosed redress for a decision made long before an employee discovered the pay discrimination.  They correctly went to Congress to fix the law, instead of demanding that courts rewrite it themselves. 

But the solution is not to eliminate statutes of limitations altogether, which is essentially what the Fair Pay Act does when it restarts the litigation clock with every new paycheck.  No, the proper solution is simply to codify the common law “discovery rule” for these types of cases, making clear that the statute of limitations begins to run only when the employee discovers the wrong that had been committed against her way back when — a compromise that was proposed by Senator Kay Bailey Hutchison but rejected by the Senate.  Instead, the new law introduces major uncertainty into business operations and gives every employee a Sword of Damocles to dangle over her employer’s balance sheet.  Companies will all of a sudden be subject to decades-old discrimination claims they have no ability to defend.

At bottom, the Lilly Ledbetter Fair Pay Act takes a bludgeon to an already reeling economy, acting as a stimulus only for the lawyers bringing and defending the coming avalanche of lawsuits.

Slate on Cato Conference

Michael Newman, Slate’s politics editor, writes up the counterterrorism conference we held here two weeks ago. It’s an OK article, and we appreciate the publicity. The trouble is that Newman tries to stuff a conference summary into a theme about Libertarians and Obama. Hence the title, “Cozying Up to the New Guy: Libertarians are oddly hopeful about the Obama administration.” That may be a good hook, it may even be generally true, but it creates a misleading impression here. So at the risk of looking a gift horse in the mouth, I have several complaints.

First, Cato’s defense and foreign policy scholars have repeatedly attacked the Obama team for its adherence to the flawed, bipartisan counterterrorism and defense strategy that it inherited. See here and here for starters. I’m not sure who is cozying up.

Second, the article imagines a strategic rationale behind the conference – Cato thinks it can most influence Obama on issues related to terrorism and is therefore directing its energies there. Not really. There is no singular “Cato view” on these matters or any other. Several scholars here had an interest in counterterrorism policy, and organized a project, which included a public conference, on it. The conference would have happened regardless of who was President. Sure, we’d like the policy-makers in the executive branch to adopt a more sensible perspective about terrorism than their predecessors. But we’d also like Congress, the public, and the media to adopt that view.

Third, Newman gets the theme of the conference right – terror is as big a problem as the terrorism that sparks it – but Slate readers may get the impression that this was just a bunch of libertarians saying so. In fact, the speakers came from across the ideological spectrum. To the extent that they agree, and not all do, it shows that these policies are common-sense, even if they remain unconventional.

Finally, the article says that: “Think tank experts aren’t stupid.” I would have started that sentence with “most.”

Obama’s Constitution

At the beginning of his inaugural address, President Obama observed that

“America has carried on, not simply because of the skill or vision of those in high office, but because we the people have remained faithful to the ideals of our forebears and true to our founding documents.” [my italics]

Although Obama had taught constitutional law for 12 years, the rest of his address raises a question whether he has ever read the Constitution. For he spells out his vision by committing his administration to a wide range of activities for which there is little or no authority in the Constitution.

“We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place and wield technology’s wonders to raise health care’s quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age.”

Moreover, he asserts, our government should be judged by “whether it works – whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified,” not by such “stale political arguments” as whether the policies that might generate these outcomes are constitutional and generate benefits higher than the costs.

Nor are the commitments of his administration to be limited to those of greatest concern to Americans.

“To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow, to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to the suffering outside our borders; nor can we consume the world’s resources without regard to effect.”

“What is required of us now is a new era of responsibility – a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world.”

President Obama is intelligent and charming –- but not wise. The Constitution only authorizes the president to be the chief executive of the federal government and the commander-in-chief of the armed forces, ample challenges to the most skilled person, but the president is not the sole leader of the federal government, the American nation, or the free world. Based on his inaugural address, President Obama has no apparent sense of the limits of what he can and should do –- and that will reduce his effectiveness in addressing those issues within his clear authority.

Little Hope for Change on Judges Until the Judiciary Stops Legislating

In a recent editorial, the Washington Post issued a “hope for improvements” from the vitriol, partisan rancor, and blocking of qualified candidates that has increasingly dominated nominations to the federal bench.  Don’t hold your breath; this is one hope that will not inspire change during the course of the Obama administration.

No, the poisoning of the judicial appointment process won’t end till courts stop acting as policymakers, finding powers in the Constitution that aren’t there and limiting rights that are.  Thus the problem with judicial nominations has less to do with cynical politicians and embittered ideologues than it does with a ”living Constitution” that has been stretched over the years beyond any Founder’s recognition.  In failing to enforce the constraints on federal powers – and to protect the rights retained by the people under the Ninth Amendment (along with those covered by the Fifth Amendment’s takings clause and the Fourteenth Amendment’s privileges or immunities clause, to name but the most maligned) – what Alexander Hamilton called the “least dangerous branch” has devolved into a disfunctional policymaking body that understandably attracts political passions. As various parties wrestle to direct the government’s expanded powers in their favor constituents, as my boss Roger Pilon wrote in 2002, “everything is politics, nothing is law.”

Until we reset the balances of power among the branches and the government again abides by its constitutional parameters, I’m afraid that the partisanship and politics of personal destruction surrounding judicial nominations will continue unabated – to the detriment of the nominees, the judiciary, and the country.  When so much is at stake, it can be no other way.  (You might as well ask elections to be less partisan or otherwise heated.)

But the Post’s editorial is on the right track about one thing: the failure of Republicans to define the word “extremist” when speaking of likely Obama judicial nominees.  Democrats and their hard Left brethren were so unsuccesful in blocking John Roberts and Samuel Alito in large part because they had cried bigot about practically every previous lower-court nominee.  Instead, let’s define what is unacceptable practically and establish an objective standard for judicial nominees from the new administration.  Then it will only be a matter of measuring the degree of support or opposition when analyzing each one’s record.  I suggest the following: “An extremist judge is someone who puts policy views over the text of the law as written, someone whose record shows a propensity for rewriting statutes or the Constitution.”

If you don’t like the result you get when following the law or the Constitution, change the law or amend the Constitution. As Oliver Wendell Holmes said when asked whether he would be doing justice on the Supreme Court, “This is a court of law, young man, not a court of justice.”

NSA Spying on Journalists: We Need a New Church Committee

Last week Keith Olbermann conducted a pair of interviews that gives a troubling look at the NSA’s domestic wiretapping operations. First, Olbermann talked with Russell Tice, a former NSA analyst who tells Olbermann that the NSA had access to all of the American’s peoples’ electronic communications, including those of journalists. Second, Olbermann talked to a New York Times reporter who is currently being pressured by federal prosecutors to divulge his sources for his 2006 book State of War, which focused on the CIA’s recent intelligence-gathering activities. The federal government hauled various former government officials before a grand jury and confronted them with phone records showing conversations between the government officials and Risen. Olbermann suggests that Risen’s phone records might have been obtained by the NSA using the dragnet surveillance program Tice has described.

It’s important to acknowledge that we don’t know if Risen was a target of the NSA program. Federal prosecutors do have legal powers to obtain the phone records of suspects without the knowledge of those suspects. It’s quite possible that the feds got Risen’s records using a valid subpoena under judicial supervision. However, the fact that we don’t know the full story is itself a serious problem. If Tice has described the program accurately and Risen’s phone records were obtained as part of such a surveillance program, that would be a pretty major scandal. Remember that even last year’s extremely permissive FISA Amendments Act didn’t legalize warrantless eavesdropping on purely domestic communications.

The problem is that we don’t know. And unfortunately, this is an area where our system of checks and balances have broken down. Congress has shown little appetite for performing one of its most important functions: investigating the activities of the executive branch to verify that the law is being followed.

Congress wasn’t always so timid. Thirty-five years ago, after another lawless president left office, we had not just one but three investigations of the prior administration: one in the House, one in the Senate, and one in the executive branch. The most successful of the three was the Senate committee that came to be known as the Church Committee. It produced a massive report documenting a ton of illegal activities by the executive branch over the preceding half-century. Gene Healy and I discussed a few of their findings here, and Julian Sanchez has a more thorough summary of the findings here.

In the forthcoming edition of the Cato Handbook on Policy, I argue that Congress should launch a broad investigation of executive branch surveillance abuses modeled on the Church Committee. Only by uncovering the full extent of domestic surveillance activities in the past can we craft sensible safeguards to make sure that abuses cannot happen again. I think there are three crucial factors in making a new Church Committee a success. First, it needs to be bipartisan. That is, it can’t focus merely on the misdeeds of the Bush administration. I recommend starting where the Church Committee left off and including the activities of the NSA, CIA, and FBI under presidents Carter, Reagan, Bush 41, Clinton, and Bush 43. If done right, this would be more than a fig leaf. Bill Clinton was hardly a doctrinaire civil libertarian, and so investigation might uncover real abuses that occurred under Clinton’s watch.

Second, it’s important that as much of the results as possible be made public. The lasting impact of the Church Committee was largely due to the sheer quantity of illegal activities it uncovered. If the Church Committee had only released information about the most egregious violations of the law, advocates of executive power might have been able to spin them as the work of a few bad apples. But because the Church Committee documented a pattern of law breaking involving dozens of people over the course of decades, under Democratic and Republican presidents alike, it became clear that there were systematic problems requiring systematic reforms. The passage of the original FISA Act was one of the most important results of the Church Committee report.

Of course, partisans for the recently-departed Bush administration will paint any effort by Congress to expose these secret programs as a partisan witchhunt that will aid the enemy. And obviously, Congress should be careful not to reveal details that could derail ongoing terrorist investigations or put undercover agents at risk, and the like. But there’s plenty of work Congress could do that is plainly neither a partisan witchhunt nor a danger to national security. The information the Electronic Frontier Foundation has uncovered regarding cooperation between telecom companies and the government would be a good place to start. Maybe Congress will find nothing improper happened there, but it’s important for the public to know what did happen so we can decide for ourselves.