Topic: Law and Civil Liberties

Hyde Will Be Missed

Former Congressman Henry Hyde of Illinois, who died this morning in Chicago at the age of 83, was a friend of the Cato Institute who worked closely with us in our efforts to put a spotlight on the abuses flowing from America’s civil asset forfeiture law. A staunch defender of the war on drugs, Rep. Hyde saw nonetheless that not every tactic the government used in that war could be justified. In particular, the government’s seizure for itself of private property that merely “facilitated” a crime, often from completely innocent people, drove him to do whatever he could to end such abuses. He called hearings, at which Cato scholars were invited to testify. Then in 1995 Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? The tone of the book was captured in its opening words:

Much of what you may have learned in school or college about your rights and liberties no longer applies. Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use–all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed.

The book was a ringing indictment of the government’s war on private property through the awful practice of civil asset forfeiture. More hearings followed its publication, culminating in a reform bill, which Hyde unveiled as the keynote speaker at a 1999 Cato conference. Hyde was tireless in shepherding the bill through both houses of Congress, fighting the Justice Department all the way, and in obtaining President Clinton’s signature. We will miss him.

Henry Hyde, RIP

Rep. Henry Hyde died this morning. He was one of the “elder statesmen” in the GOP and, as this article says, was known around the capital for his courtly manners. Hyde and Cato found common ground in the mid-1990s as the government was seizing property left and right under the guise of civil forfeiture laws. Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure?

Here’s a brief excerpt from that book:

I think it evident that an individual’s free nature indicates clearly that we are self-providers, that we naturally want to support ourselves and our families. But when an individual is robbed of his or her property, of the right to ownership of material goods, that individual then becomes subject to the will, caprice, and power of others in a way that degrades the dignity and independence of his or her human nature. And when this power is concentrated in the hands of government, it becomes an even greater threat to life and liberty. … My personal belief, which prompted my writing this book, is that there is an immediate need for restoration of the constitutional principles that are debased by the current application of asset forfeiture laws.

Hyde shepherded reform legislation through the Congress following the publication of his book.  Although Hyde and Cato had disagreements–especially with respect to term limits–he had kind things like this to say: “The Cato Institute has consistently provided a much-needed and very certain trumpet among the unreasoning cacophony that is everyday Washington.”

Stenographers to the Powerful

There’s a mini-scandal brewing over a Time magazine column by Joe Klein that attacked House Democrats for playing politics with the domestic wiretapping issue. Klein wrote that the House Democratic proposal would, among other things, “require the surveillance of every foreign-terrorist target’s calls to be approved by the FISA court” and “give terrorists the same legal protections as Americans.” In an accompanying blog post he accuses Democrats of standing in the way of sensible legislation “because of blind, stupid partisan politics.”

Now, as Ryan Singel ably demonstrates virtually every word of the FISA discussion in Klein’s article is false. The Dems’ proposal doesn’t require court approval to intercept communications overseas, nor does it “give terrorists the same legal protections as Americans.” The bill isn’t that long or complicated; had Klein bothered to actually read it, it would have been obvious that these characterizations were false. Klein even seems confused about which legislation the House has been considering. Klein issued a weasely follow-up post on his blog on Saturday conceding that he “may have made a mistake” in discussing the details of the bill but sticking by his “larger point” that House Democrats were to blame for holding up sensible legislation.

Today, Time issued its own correction to the online version of the column, and will apparently print that correction in the magazine as well. It reads, in its entirety:

In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets. Republicans believe the bill can be interpreted that way, but Democrats don’t.

As Glenn Greenwald points out, it’s hard to find a pithier summation of all that’s wrong with our nation’s media elites. The editors of the nation’s most popular newsweekly apparently don’t believe it’s their job to evaluate the two sides’ competing claims and decide which is more credible. They seem to believe that “balance” simply requires faithfully transcribing each side’s claims. Even when one side’s claims is clearly true and the other side’s claim is clearly false, it’s not the reporter’s job to say so, or even to quote an independent expert saying so.

And that, of course, leaves Time’s four million readers with the erroneous impression that the Democrats want to give overseas terrorists the same legal protection as American citizens. Most readers aren’t going to take the time to read the bill and disentangle the competing claims. Most don’t read Glenn Greenwald’s blog, Ryan Singel’s blogs, or Cato@Liberty.

It’s worth mentioning the broader context here. The House Democrats’ bill, known as the Restore Act, is far from perfect. It allows the executive branch to intercept foreign-to-domestic calls on American soil without a warrant in certain circumstances, which I think runs afoul of the spirit of the Fourth Amendment. But the legislation is much better than the Protect America Act Congress passed in August, and better than the companion legislation being discussed in the Senate. And the House Democrats have resisted intense lobbying from the telecommunications industry to give them retroactive blanket immunity for illegally sharing their customers’ private information with the government. They deserve more credit than anyone else in Congress or the White House for putting principle above political expediency.

Klein has rewarded them for their courage by repeating inaccurate Republican talking points and thereby smearing them as soft on terrorism. By refusing to print a meaningful correction—one that points out that the Democrats proposal does not, in fact, “give terrorists the same legal protections as Americans”—they are perpetuating the false impression that thousands of ordinary Time readers got from Klein’s column. And they are also starkly revealing the sad state of elite journalism.

Constitutional Reform in Latin America?

Yesterday I went over to the Organization of American States (OAS) for a roundtable on “Constitutional Reform in the Americas.” The event featured opening remarks by the OAS Secretary General, followed by country-specific presentations by experts on Bolivia, the Dominican Republic, Ecuador, and Venezuela.

I won’t bore you with the details, but three themes emerged:

1) The ever-expanding constitutions of many Latin American countries, both to strengthen strongmen (Chavez) and to add to the copious list of positive rights (Brazil). This is not good for either constitutionalism or rule of law because on the one hand you have the country’s founding document being changed at the whim of a single man and on the other a constitution bloated with such things as the fundamental right to, e.g., four weeks’ paid annual vacation decreases in legitimacy. To paraphrase an old Argentine lawyer who advised that country’s last significant amendment process in 1993-94, “constitutional inflation leads to rule of law devaluation.” Alternatively, the Latin American counterpart to the old saw about French constitutions being filed in libraries’ periodicals section is that Latin ones are filed as encyclopedias.

2) The desire to constitutionalize (or rebalance constitutional structures relating to) the “special rights” of indigenous peoples. There is nothing wrong per se with wanting to recognize that certain native peoples preceded the arrival of European colonists/conquerors (British-American in the U.S., Spanish and Portuguese in Latin America) and that these people should not be exploited as a result of their having been vulnerable to colonization. But to enact wholesale nationalizations and special privileges on the basis of race, or caste, or tribe – let alone raise these perversities to the constitutional level as is being proposed in Bolivia – is a political and legal travesty.

3) The battle over political reform is no longer, if it ever was, between left and right or socialism and neoliberalism (the common Latin American term for pro-market policies and the Washington Consensus), but rather between democracy and authoritarianism. This may not represent that much of a change from the past – the populist governments that plagued the region in the 20th century could be alternately left or right wing – but it does confirm that the “consolidating democracy” project of the ’80s and ’90s has stalled if not taken a reverse. That is, the narrative that those of us studying Latin America in college and grad school in the late ’90s to early 2000s learned – the Third Wave of democratization, Latin America finally being on the right path but just needing time to grow economically –  underestimated some nasty undercurrents of resistance.

In short, the roundtable was equal parts fascinating and frustrating. You can watch it (in Spanish) here.

Which Secretary Chertoff Do You Believe?

In February, Department of Homeland Security Secretary Michael Chertoff said the following about the REAL ID Act: “If we don’t get it done now, someone is going to be sitting around in three or four years explaining to the next 9/11 Commission why we didn’t do it.”

Alice Lipowicz of Washington Technology reported on REAL ID yesterday:

[Chertoff] and other DHS officials have said that older drivers present a lower terrorism risk and, therefore, might be allowed more time to switch to Real ID licenses. According to the Washington Post, DHS might extend the deadline to 2018 for drivers older than 40 or 50. Moreover, states will have more time to implement the act, Chertoff said.

DHS had previously extended the statutory May 2008 deadline for beginning implementation to December 2009 and recently set 2013 as the deadline for full implementation.

2013 is more than 5 years from now - 2018 is more than eleven. For all Chertoff’s urgency at the beginning of the year, has the Department abandoned its mission to secure the country?

Of course not. But Chertoff and the DHS were clearly trying to buffalo the Congress and the American people on REAL ID earlier this year. They haven’t succeeded.

Happily, this national ID system doesn’t add to our country’s security as its proponents have imagined. We are not unsafe for lacking a national ID. I explored all these issues in my book Identity Crisis.

If REAL ID were a sound security tool, pushing back the deadline for compliance would be a security risk, of course, as would reducing the quality of the cardstock used to make REAL ID-compliant cards - another measure DHS is considering.

Forget security, though. DHS is straining to get the program implemented just so it can claim success and save some face.

“[T]hose who are singing a funeral dirge, I think they’re singing the wrong tune,” Chertoff said November 6th. Alas, as before, Secretary Chertoff is the one more likely to sing a different song.

Privatize Marriage

Stephanie Coontz, a historian, suggests in the New York Times that government get out of the marriage business. Why, she asks, “do people — gay or straight — need the state’s permission to marry?”

For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

So, she says, “Let churches decide which marriages they deem ‘licit.’ But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.”

It’s a great idea. Indeed, it’s such a good idea that I proposed it in Slate back in 1997:

So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.

One of the problems with this whole idea is that, as usual, the state has entangled itself in our lives. There are 1049 federal laws that mention marital status, most of them dealing with taxes or transfer payments. If marriage becomes a matter of private contract, the federal government will still have to decide whether to recognize all such contracts for the purpose of handing out marital benefits. And that doesn’t even get into custody, inheritance, property, next-of-kin, hospital visitation and other sorts of laws usually handled at the state level. Just another example of how the intrusion of the state into every corner of society makes it difficult to privatize any aspect of life. But it’s good to see the idea getting some discussion.

This Week at the Supreme Court

Notwithstanding last week’s agreement to hear the D.C. guns case – the announcement of which managed to be both later than originally expected and earlier than expected after the decision’s postponement – the Court has gone back to putting itself out of business by reducing its workload to nothingness.  (How’s that for judicial restraint?) 

The Court has granted review to 51 cases this term, putting it about at the same pace as last year, when only 68 cases were decided after argument.  This is down from the 70-low-80s of the previous 15 years (except 92 in 1997-98), which itself is down from the 100-110 pace before that (and, for example, 129 in 1973).

But forgetting the numbers game, this week the Court is hearing four arguments, in cases involving: 1) private causes of action under ERISA (Larue v. DeWolff); 2) the deductibility of financial advisers’ fees from trust/estate taxes (Knight v. Commissioner of Internal Revenue); 3) whether New Jersey may construct a natural gas facility on the Delaware River over Delaware’s objection (New Jersey v. Delaware); and 4) the federal preemption of a (Maine) state law that blocks the delivery of Internet-bought tobacco to teenagers (Rowe v. New Hampshire Motor Transport Assn.).  Not too exciting, other than that case 3 comes in under the Court’s rare original jurisdiction (meaning no state or lower federal court first ruled on the matter).

On Friday, the justices are scheduled to hold a private conference to discuss more pending cert petitions, with orders on those expected next Monday.  The safe bet is that they’ll deny them all – though there is one interesting case (McDermott v. Boehner) where one sitting congressman is suing another over the latter’s disclosure to reporters of an illegally taped (and embarrassing) phone conversation.  Stay tuned.