Topic: Law and Civil Liberties

More Bush Administration Lawbreaking

Over at Ars Technica, I report on the latest allegations of illegal activities by the Bush administration. Back in March, a Department of Justice report revealed that the FBI had sent hundreds of letters to telecom providers requesting that due to “exigent circumstances,” the providers turn over customer records without a warrant. The FBI later acknowledged that these letters were improper (read: illegal) and announced that the use of those “exigent letters” had been suspended.

Now, thanks to a freedom-of-information request by the Electronic Frontier Foundation, we learn that some of the letters not only requested call records for specific phone numbers, but also asked the providers to “provide a community of interest” for each phone number. It’s not clear exactly what information was provided in response to that request, but in a Monday blog post, EFF’s Kurt Opsahl argues that the request was almost certainly illegal—and would have been illegal even if they had been made as part of a legally-authorized warrant or national security letter.

“We need a new word for this,” Opsahl writes, “what do you call an illegality piled on top of another illegality? Illegal squared?”

Asked about the latest allegations of executive branch lawbreaking, White House Homeland Security Advisor Fran Townsend pointed to the creation of a new “compliance unit” in the FBI. It’s good to hear the FBI is taking the law so seriously, but I thought the Constitution already provides for a “compliance unit.” It’s called the judicial branch.

You Know It’s a Dark Hour When…

…you’re having wistful fantasies about staff meetings. In all seriousness, though, there’s great news: once imprisoned by Iran, Wilson Center scholar Haleh Esfandiari is back at home in Washington–and back at work at the Wilson Center. But as she says, during her stint in Evin prison, she was indeed dreaming about being back at Wilson Center staff meetings:

I had blocked, you know, thinking about my husband, my daughter, my grandchildren, the house; I blocked all that out because that would have led me to despair. So, for eight months, or for the four months in prison, I didn’t think about it.

I dreamt of my first staff meeting at the Wilson Center. (Laughter.) I seriously did. I really did that, I said, OK, I would [not] tell anybody I’m in town … I would open the door Monday morning at 9:00, walk in to the staff meeting and everybody [would say], “She’s here!”

Full transcript of Esfandiari presser here. (.pdf)

Friday Legal Roundup

Here’s a Friday Legal Roundup:

  • North Carolina prosecutor Michael Nifong goes to jail for his misconduct in bringing reckless charges against Duke athletes. Cato will be hosting a book forum on the case next Tuesday. Previous coverage here and here
  • A federal judge has ruled that ”National Security Letters” are unconstitutional.  Cato said so here.
  • The Federalist Society has an on-line discussion on the landmark Second Amendment lawsuit involving Cato’s Tom Palmer and Bob Levy here. To learn more, go here and here.
  • President Bush is expected to announce his choice for the position of Attorney General. The Legal Times invited several D.C. lawyers, including myself, to offer advice to the next AG.  Go here for my list of Dos and Don’ts. If the Legal Times had not imposed word limits on my article, I could have said a lot more.

“Why Are You Trying to Give Away the President’s Power?”

Jack “I’m Not a Civil Libertarian” Goldsmith has more on the thirst for power inside the executive branch in excerpts from the book in Slate today.

[Counsel to Vice President Cheney David] Addington once expressed his general attitude toward accommodation when he said, “We’re going to push and push and push until some larger force makes us stop.” He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.

More here.

Cato Brief in NYT

One of the big cases the Supreme Court will be hearing in its upcoming term concerns the constitutionality of the Military Commissions Act.  That law sought to revoke the jurisdiction of federal courts over habeas corpus lawsuits arising out of the Guantanamo Bay prison facility.  The case will not be heard by the High Court until November, but the New York Times had an article about it over the weekend quoting from the Cato brief (pdf) that I prepared.  I argue that Congress overstepped its authority by trying to withdraw the jurisdiction of federal courts over habeas corpus claims. 

More background about the case in this NYT article (reg r’d).  For more about the constitutional record of the Bush administration, read this.

Oprah Winfrey, Political Power Broker

Billionaire Oprah Winfrey is making a million-dollar contribution to Barack Obama’s presidential campaign. And despite all the campaign finance restrictions of the past 30 years, it’s perfectly legal. That’s because Oprah is making her contribution in the form of time on her television show, appearances with him on the campaign trail, and other uses of her celebrity. But if a rival media mogul, someone like Sumner Redstone or John Malone, wanted to make a contribution of more than $2,300 to a presidential candidate, that would be illegal. Because, you know, it’s corrupt to make a large contribution. Wouldn’t want the next president to be indebted to a businessman who gave him a $10,000 contribution.

This Saturday, “Winfrey will host her first-ever presidential fundraising affair on the grounds of the Promised Land, her 42-acre ocean- and mountain-view estate in Montecito, Calif. – an event that is expected to raise more than $3 million for Obama’s campaign.”

Matthew Mosk of the Washington Post outlines some of the other ways Winfrey might help her preferred candidate.

Among the weapons in Winfrey’s arsenal: the television program that reaches 8.4 million viewers each weekday afternoon, according to the most recent Nielsen numbers. Her Web site reaches 2.3 unique viewers each month, “O, the Oprah Magazine,” has a circulation of 2 million, she circulates a weekly newsletter to 420,000 fans and 360,000 people have subscribed to her Web site for daily “Oprah Alerts” by e-mail.

More than that, though, the Nielsen tracking data show that her most loyal viewers are women between 25 and 55 – a group that also votes in large numbers in Democratic primaries.

Oprah’s well aware of her power:

The fundraiser may be only the start. The Winfrey and Obama machines have maintained silence on the exact nature of their talks over what her role will be, but the idea of her appearing in television ads and other appeals is very much in play. She offered during a recent interview with CNN’s Larry King: “My money isn’t going to make any difference. My value to him – my support of him – is probably worth more than any other check that I could write.”…

Winfrey said in an audio Web chat last week that, this year, the Obamas will be her only political guests.

Campaign finance reform was promised as a way to make everyone equal in the political process, to squeeze out the power of big money. But one of its effects is to make some rich people more equal than others. If Oprah–or Rupert Murdoch, or Donald Graham–decides to use his or her resources to help a particular candidate, that’s legal and very powerful. But the rich man who runs a software company is forbidden to use any significant part of his financial resources to help a candidate.

All power to journalists and celebrities in the reformed political process.

John Edwards’ Nurse Ratched Plan

John Edwards says that his universal health care plan will be mandatory not just for taxpayers and doctors, but for patients: You will get preventive care, and you will like it:

“It requires that everybody be covered. It requires that everybody get preventive care,” he told a crowd sitting in lawn chairs in front of the Cedar County Courthouse. “If you are going to be in the system, you can’t choose not to go to the doctor for 20 years. You have to go in and be checked and make sure that you are OK.”

He noted, for example, that women would be required to have regular mammograms in an effort to find and treat “the first trace of problem.”

As Jon Henke notes, Edwards also proclaims that “the right to choose and the right to privacy are fundamental constitutional rights.” But apparently abortion is the only thing you have a constitutional right to choose. You have no fundamental right to choose not to get a mammogram. Or any other kind of preventive care. Shades of This Perfect Day and Brave New World.

This is, of course, a fundamental problem with socialism, or with socialization of the cost of anything. Edwards sincerely believes, with good reason, that preventive care helps to reduce costs by catching problems early and helping people stay healthy. (Though he may not be right about that.) But why is my health care budget his concern? Because he plans to socialize the costs of health care. So indeed, if I fail to take care of myself, I’m imposing costs on the collective. And as the collectivist-in-chief, Edwards wants to treat me as a national resource, not as a free adult individual.

This isn’t the first time such arguments have been made. What’s the argument for requiring adults to wear bicycle helmets and seat belts? That otherwise the taxpayers might have to pay for the costs of injury. Activists who want to restrict smoking, trans fats, and other unhealthy habits make the same argument: The collective is going to be paying for your health care, so you owe it to us to hold down our costs.

When we realize that socializing costs creates such unpleasant conflicts, we can respond in one of two ways: We can move away from socialization and allow people to make their own decisions and bear the consequences, or we can increasingly restrict freedom in order to hold down collective costs. Libertarians prefer the former approach, John Edwards the latter.

In One Flew over the Cuckoo’s Nest, Nurse Ratched was a tyrannical nurse who forced medical care on people who didn’t want it. She was known as “Big Nurse,” which might be a better metaphor for our increasingly therapeutic state than “Big Brother.” Democrats love Hollywood celebrities (and vice versa). Maybe Edwards can get Louise Fletcher to do a health care tour with him. She could wear her state nurse’s uniform and sing “You Belong to Me.”