Topic: Law and Civil Liberties

Bierfeldt v. Napolitano Roundup

Back on March 29th, Campaign for Liberty employee Steven Bierfeldt was leaving the Campaign’s regional conference in St. Louis, Missouri. He was carrying $4700 in cash donations and Campaign for Liberty and Ron Paul literature. TSA personnel at the St. Louis airport felt that carrying this amount of cash was “suspicious” and detained him for interrogation. The TSA personnel intended to take Bierfeldt to the local police station for further questioning after he refused to answer the questions associated with their fishing expedition. Luckily, a plainclothes officer arrived and spoke briefly with one of the TSA officers, who told Bierfeldt that he was free to go.

Bierfeldt is now filing suit against Secretary of the Department of Homeland Security Janet Napolitano. The ACLU Blog of Rights has more on the suit, including a digital copy of the complaint. Filing suit to prove that “[c]arrying $4700 in cash poses no conceivable threat to flight safety” is a sign that airport screening is going too far.

Bierfeldt was right to be wary of airport screening while carrying Ron Paul and Campaign for Liberty literature. The Missouri Information Analysis Center, one of 70+ “fusion centers” in the nation, had just released its report on domestic terrorism and the militia movement. Libertarians are expressly targeted as potential domestic terrorists:

Political Paraphernalia: Militia members most commonly associate with 3rd party political groups. It is not uncommon for militia members to display Constitutional Party, Campaign for Liberty, or Libertarian material. These members are usually supporters of former Presidential Candidate: Ron Paul, Chuck Baldwin, and Bob Barr.

Cato recently held a forum on this phenomenon, Fusion Centers: Domestic Spying or Sensible Surveillance? My colleague Tim Lynch hosted, and panelists included Bruce Fein, Constitutional Attorney, The Lichfield Group; Harvey Eisenberg, Chief, National Security Section, Office of United States Attorney, District of Maryland; and Michael German, Policy Counsel, American Civil Liberties Union. Audio and video are available at the link.

Mike German has written extensively on this topic. Read his November 2007 report, What’s Wrong with Fusion Centers and July 2008 update. Mike is a former FBI agent and author of the excellent book, Thinking Like a Terrorist.

You can watch Mr. Bierfeldt giving his side of the story to Judge Andrew Napolitano (no relation to Homeland Secretary Janet Napolitano) on Fox’s Freedom Watch.

Judge Napolitano recently spoke at the Cato book forum, Dred Scott’s Revenge: A Legal History of Race and Freedom in America. Co-panelists included my colleague Jason Kuznicki and Reason’s Damon Root.

The White House as Animal Farm

As George Orwell’s Animal Farm closes, the revolutionary pigs have been transformed into oppressive humans.  It took some time to occur on the Animal Farm.  It’s taken just a few months in the Obama White House.

Reports McClatchy Newspapers:

President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama’s legal arguments repeatedly mirror Bush’s: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

“It’s putting up a veritable wall around the White House, and it’s so at odds with Obama’s campaign commitment to more open government,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist.

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration’s legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

“There is no question that there are (durable) cultures and mindsets in agencies,” Weismann acknowledged.

Conservatives once opposed executive aggrandizement.  Then with George W. Bush in office, they embraced the idea of the presidency as a kind of elective monarchy.  With President Barack Obama now pushing the executive power grab, will conservatives rediscover their inner-Constitution and again join the barricades for liberty?

Kristof: Drugs Won the War

New York Times columnist, Nicholas Kristof’s latest column is about the failure of the drug war.  Excerpt:

Here in the United States, four decades of drug war have had three consequences:

First, we have vastly increased the proportion of our population in prisons. The United States now incarcerates people at a rate nearly five times the world average. In part, that’s because the number of people in prison for drug offenses rose roughly from 41,000 in 1980 to 500,000 today. Until the war on drugs, our incarceration rate was roughly the same as that of other countries.

Second, we have empowered criminals at home and terrorists abroad. One reason many prominent economists have favored easing drug laws is that interdiction raises prices, which increases profit margins for everyone, from the Latin drug cartels to the Taliban. Former presidents of Mexico, Brazil and Colombia this year jointly implored the United States to adopt a new approach to narcotics, based on the public health campaign against tobacco.

Third, we have squandered resources. Jeffrey Miron, a Harvard economist, found that federal, state and local governments spend $44.1 billion annually enforcing drug prohibitions. We spend seven times as much on drug interdiction, policing and imprisonment as on treatment. (Of people with drug problems in state prisons, only 14 percent get treatment.)

I’ve seen lives destroyed by drugs, and many neighbors in my hometown of Yamhill, Oregon, have had their lives ripped apart by crystal meth. Yet I find people like Mr. Stamper persuasive when they argue that if our aim is to reduce the influence of harmful drugs, we can do better.

Good stuff.  Jeff Miron is a Cato senior fellow.  Here’s a link to Cato’s new study, “Drug Decriminalization in Portugal,” by Glenn Greenwald.  More Cato research here.

Good News: No Eminent Domain for Flight 93 Memorial

Whether the federal government should be building a $58 million memorial to the heroic passengers on United flight 93, who thwarted the plot to crash a fourth plane on September 11, is a question that has yet to be asked in Washington.  But it clearly is improper for the authorities to acquire land for the memorial through eminent domain.

Thankfully, Washington has backed down from its plans to seize the property. 

Reports Tony Norman of the Pittsburgh Post-Gazette:

Yesterday, the U.S. government announced that it wouldn’t resort to eminent domain to seize land in Somerset, Pa for the proposed Flight 93 memorial. This is good news for fans of the concept of private property. When the National Park Service announced that it would seize the land from the seven property owners for the memorial rather than pay the landowners what they were asking for the lots, you didn’t have to be a libertarian to know something unjust was happening. The National Park Service was engaging in behavior that was fundamentally un-American, anti-democratic and an affront to the concept of property rights. Sure, the U.S. Supreme Court affirmed the government’s right to do such a thing in the name of the public good, but it was questionable whether a memorial to a plane load of heroes that crashed in a field on 9-11 outweighs the rights of the current owners to use the land as they see fit. Fortunately, the government has declined to grab the final 500 acres it needs for its $58 million, 2,200 acre 9-11 memorial and national park.

The United 93 passengers embody the best of America.  Commemorating their heroism should be done in a manner that best reflects the values they were defending.

End War—At Least the Drug War

War is an awful thing.  Yet, to show they are serious, politicians constantly use the “war” analogy.  A “war on poverty.”  An “energy war.”  The “drug war.”

Yet militarizing these and other issues is precisely the wrong way to deal with them.  So it is with the drug war, which has come most to resemble a real war.  Indeed, more Mexicans have been dying in their “drug war” than Americans have been dying in Iraq.

It’s time to call a truce.  Writes Sherwood Ross:

Gil Kerlikowske, Obama’s new head of the Office of National Drug Control Policy, has renounced even the use of the phrase “War on Drugs” on grounds it favors incarceration of offenders rather than treatment. But talk is no substitute for action.

To his credit, Obama has long appeared to be open to a fresh approach. In an address at Howard University on Sept. 28, 2007, then Sen. Obama said, “I think it’s time we took a hard look at the wisdom of locking up some first time nonviolent drug users for decades.” 

“We will give first-time, non-violent drug offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior,” he added. “So let’s reform this system. Let’s do what’s smart. Let’s do what’s just.”
And as prison overcrowding worsens and governors currently whine they can’t balance budgets, the public might get some real relief.

Last year, more than 700,000 of the country’s 20-million pot smokers were arrested for marijuana possession, according to NORML, an advocacy lobby that works for decriminalization. Over the past decade, 5-million folks got arrested on marijuana charges, 90% of which were for “simple possession, not trafficking or sale,” NORML says.

“Regardless of whether one is a ‘drug warrior’ or a ‘drug legalizer,” writes Bob Barr in the May 25 Atlanta Journal Constitution, “it is difficult if not impossible to defend the 38-year old war on drugs as a success.”

Drug abuse is a serious social problem.  But so is alcoholism.  And many other social (mis)behaviors.  We should start treating it as a social, health, and moral problem, not as a matter for the criminal law.  

President Obama:  End this war!

This Is Not from The Onion, but the UN

Cuba recognized in the UN Human Rights Council

The HRC’s press release states that:

Cuba had withstood many tests, and continued to uphold the principles of objectivity, impartiality and independence in pursuance of the realisation of human rights. Cuba was and remained a good example of the respect for human rights, including economic, social and cultural rights. The Universal Periodic Review of Cuba clearly reflected the progress made by Cuba and the Cuban people in the protection and promotion of human rights, and showed the constructive and responsive answer of Cuba to the situation of human rights. Cuba was the victim of an unjust embargo, but despite this obstacle, it was very active in the field of human rights.

Senate Hearings on Prison Reform

The Senate Judiciary Committee is holding hearings today on Sen. Jim Webb’s (D-VA) bill to create a National Criminal Justice Commission. Senator Webb is a long-time student of what has gone wrong with American criminal justice.

The bill provides for an 18-month review of the nation’s criminal justice system and recommendations for reform. I plan to attend, and the proceedings will be available on video here. Click here to read The Sentencing Project’s endorsement of the legislation.

My colleague Tim Lynch recently published a book on crime and punishment, In the Name of Justice. Notable authors such as Court of Appeals Judges Alex Kozinski and Richard Posner, Professor James Q. Wilson, and veteran defense attorney and law professor Harvey Silverglate weigh in on how the American criminal justice system has deviated from its moral foundations.