Topic: Law and Civil Liberties

Would Telco Immunity Be Unconstitutional?

Via EFF, a fascinating article on the possible constitutional issues raised by the push to give telecom companies retroactive immunity for illegal surveillance. Anthony Sebok points out that the courts have historically held that plaintiffs in tort suits have a constitutionally-protected property interest that the court cannot wipe away without compensation. I’m not a constitutional lawyer, so I won’t venture an opinion on whether his argument is right or not. But I think it does remind us of an important fact: the plaintiffs in these lawsuits are real people whose rights have allegedly been violated by these companies.

The FISA debate raises a lot of interesting policy questions about the appropriate relationships among the government, the courts, and the telecom industry. But while those questions are important, we shouldn’t lose sight of the fact that this debate is also about a contractual relationship between those telecom companies and millions of ordinary customers. Customers had a reasonable expectation that those companies would not share their private data with third parties unless doing so was legally required. It appears that certain large telecom companies may have violated that trust. If so, it seems to me that the customers should have their day in court.

Just How Much Is This Online Gambling Ban Costing Us?

My friend Radley Balko has a post over at Reason’s Hit & Run blog about a recent attempt to discover the terms of a trade deal reached in December between the United States and the European Union. The negotiations started because of America’s wish to withdraw its prior commitment to open its market to overseas gambling service providers. (WTO members are within their rights to do that, but they must offer compensatory market openings in other areas). Recall that the details of that deal were, to put it charitably, vague at the time it was announced.

In an effort to shed some light on the agreement, a fellow named Ed Brayton submitted a Freedom of Information Act request to the Office of the United States Trade Representative asking for the details. No joy – the USTR refused his request on the grounds that the “information…is properly classified in the interest of national security pursuant to Executive Order 12958.”

Presumably the USTR would need to publicly disclose the terms of the deal when (if?) it is ratified by the WTO, but in the meantime Mr Brayton is appealing. Also in the meantime, Antigua and Costa Rica have filed (separate) arbitration requests to the WTO over their compensation package (more here, and a warning – some of the ads on this site are possibly not safe for work).

I will be speaking at a panel event at the Institute for Economic Affairs in London on Tuesday on this very subject.

Forced Nudity and Detainee Abuse

Disturbing video clip here of government agents employing forced nudity against a prisoner.

A couple of points about the video clip:

1.  Prisons are places where the government has total control over prisoners.  A prisoner may or may not get access to food, water, clothing, medicine, or even a toilet.  As a practical matter, the jailors call those shots, at least in the short term, which is long enough from the perspective of the prisoner.  Jails are necessary, to be sure, but policymakers should keep such institutions limited.  Not every legal infraction needs to be an arrestable offense.

2.  Remember this video clip the next time someone says, “Well, if the government steps over the line, there will be accountability because any victim of abuse can file a big lawsuit.”  In the absence of the video, how well do you think Hope Steffey’s complaint would hold up in court?  I dare say that without the video many attorneys would refuse to take the case if it came down to the word of one woman against seven deputies.  Even when lawsuits are filed, the government often argues that it enjoys legal immunity.

3.  The men and women who run our jails have very tough tasks to perform.  They must regularly process individuals who are drunk, defiant, and sometimes violent.  Not everyone can perform such tasks.  Thus, constant vigilance is necessary so that discipline does not turn into brutality.

4.  The video is also a dramatic reminder about some of the claims we have heard from the Bush administration with respect to the treatment of prisoners.  President Bush and his legal advisors want to employ “alternative interrogation techniques” against persons they call “enemy combatants.”  One legal memorandum said state agents could employ forced nudity and physical force where the pain induced fell short of that associated with “organ failure” or death.  Since Hope Steffey did not experience pain equivalent to organ failure or death, an incident deemed outrageous in Ohio would be lawful abroad, at least according to that memo.  I don’t know why certain CIA personnel destroyed their own interrogation videotapes, but it was probably because they did not want the American public to see what they were doing.  That is,  disclosure would have had legal and political ramifications that certain persons in the government want to forestall.

A Clear Division Among Candidates

So much of the presidential nominating process is issue-free posturing, it’s welcome to spot a clear division among candidates on a discrete issue.

Senators Barack Obama (D-IL) and Hillary Clinton (D-NY) disagree quite starkly on whether illegal immigrants should be licensed — or, more accurately, on whether driver licensing and proof of immigration status should be linked.

Senator Obama supports licensing without regard to immigration status, and recently received the endorsement of La Opinion, the nation’s largest Spanish language newspaper, largely for that reason. (His “Yes, we can”/”Si, se puede” rhetoric probably hasn’t hurt.)

On This Week With George Stephanopolous Sunday morning, Senator Clinton said (9:09), “[M]y position has been consistent. I don’t think we should be giving drivers’ licenses to people who are not documented.”

The right answer here isn’t obvious, but it is important.

Many people believe that illegal immigrants shouldn’t be “rewarded” with drivers’ licenses. Fair enough: the rule of law is important. There’s also a theory that denying illegal immigrants “benefits” like driver licensing will make the country inhospitable enough that they will leave. This has not borne out, however. Denying illegal immigrants licenses has merely caused unlicensed and untrained driving, with the hit-and-run accidents and higher insurance rates that flow from that.

The major reason, though, why I agree with Senator Obama is because the linking of driver licensing and immigration status is part of the move to convert the driver’s license into a national ID card. Mission-creep at the country’s DMVs is not just causing growth in one of the least-liked bureaucracies. It’s creating the infrastructure for direct regulatory control of individuals by the federal government.

Were immigration status and driver licensing solidly linked nationwide, the driver’s license would not just be a “benefit” of citizenship. It would then clearly be amenable to use as an immigration-control tool — as has already been proposed. Law-abiding, native-born citizens would more and more often be required to show ID. And it would be converted to additional uses. The federal government could condition our access to goods, services, and infrastructure on carrying and presenting a national ID, possession of which the government could make conditional on every regulatory whim that swept past.

We need to restore the driver’s license to its original role — as a license to drive. American citizens should not have to submit or prove their Social Security numbers in order to get licensed. If illegal immigrants “benefit” from that, so be it. It’s more important to protect U.S. citizens’ liberties now and for the future than to “go after” illegal immigrants while reform of our out-of-whack immigration laws languishes.

Ve Have Vays of Making You Buy Ze Health Insuranze

One of those ways, suggested by Sen. Hillary Clinton (D-NY), is to force employers to monitor their workers’ health insurance status:

Democrat Hillary Rodham Clinton said Sunday she might be willing to have workers’ wages garnished if they refuse to buy health insurance to achieve coverage for all Americans.

Evidently, compassion for your fellow man is measured by how much you’re willing to badger and harass him.

Privatized Law Enforcement

The New York Times has a fascinating article explaining how bail bondsmen are a uniquely American, quasi-private element of the criminal justice system:

…posting bail for people accused of crimes in exchange for a fee…is all but unknown in the rest of the world. In England, Canada and other countries, agreeing to pay a defendant’s bond in exchange for money is a crime akin to witness tampering or bribing a juror — a form of obstruction of justice. …Other countries almost universally reject and condemn Mr. Spath’s trade, in which defendants who are presumed innocent but cannot make bail on their own pay an outsider a nonrefundable fee for their freedom. “It’s a very American invention,” John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system. “It’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.” …Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee. America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear. …The system costs taxpayers nothing, Mr. Kreins said, and it is exceptionally effective at ensuring that defendants appear for court. …According to the Justice Department and academic studies, the clients of commercial bail bond agencies are more likely to appear for court in the first place and more likely to be captured if they flee than those released under other forms of supervision.

Libertarians sometimes get accused of being utopians because of occasional debates about the degree to which things such as roads, defense, and law enforcement can be handled by the private sector. But this article is a great introduction to a thought experiment: Imagine if America’s private bail system did not exist and one of Cato’s legal experts proposed privatization of whatever system the government had created instead. That proposal doubtlessly would be condemned as utopian, unrealistic, impractical, and unworkable. Fortunately, that impossible idea has been successfully in place for about two hundred years. Just something to keep in mind the next time a statist tells you that something only can be done by government.

DHS Was Bluffing

Last week, I published an Op-Ed in the Detroit News predicting chaos at the border in the face of ramped up document checks. I was wrong.

In fact, the DHS was bluffing. Border crossers who lacked government-issued photo ID and proof of citizenship like birth certificates or naturalization certificates weren’t prevented from crossing. They were given fliers.

As the AP reports:

Bobby and Genice Bogard of Greers Ferry, Ark., … who winter in Mission, Texas, knew the requirements were coming but thought they took effect in June. So even though they have U.S. passports, they had left them at home.”He allowed us to pass with a driver’s license,” Bobby Bogard said of a border agent.

“But next time he said he wouldn’t,” added Genice Bogard.

Yeah.

Something to keep in mind as the DHS threatens to make air travel inconvenient for people from states that don’t comply with the REAL ID Act’s national ID mandate.