Topic: Law and Civil Liberties

Police Create Roadblock to Collect DNA Samples for Private Research Firm

(This story was originally sent last week by Declan McCullagh to his politech e-mail group. Most of Declan’s e-mail follows.)

The Gilpin County Sheriff’s Office in Colorado, a rural area not that far west of Denver, recently set up a highway checkpoint where motorists were stopped and, at least in some cases, not allowed to leave until they gave breath, blood, and saliva samples for the benefit of a private research firm. A report by Ernie Hancock says the National Highway Traffic Safety Administration was involved as well.

A Denver Post article is here:
http://www.denverpost.com/headlines/ci_6922089

More:
http://cw2.trb.com/news/kwgn-invasive-checkpoint,0,2092732.story
http://worldnetdaily.com/news/article.asp?ARTICLE_ID=57733

http://freedomsphoenix.com/Discussion-Page.htm?InfoNo=024006

The Post says the private organization in question is the Pacific Institute for Research and Evaluation, or PIRE, in Calverton, MD. Their Web site seems to be down but can be viewed here:
http://web.archive.org/web/20050826173038/www.pire.org/

The thoroughly-misnamed PIRE is a major DC government contractor (and in fact its offices are within walking distance of the Beltway). It specializes in funneling over $35 million of taxpayer money a year into its own coffers through law enforcement contracts of dubious utility, mostly dealing with drugs and alcohol, from sources including the U.S. Department of Justice. 100 percent of its budget appears to come from government contracts or grants.

Although PIRE pretends to be a “nonprofit” organization – at least that label helps to collect those fat taxpayer-funded checks from the DOJ – in reality it spends about $1.35 million a year on lobbyists. Not a bad 30-fold return on investment. And its employees are paid six-figure salaries that would be handsome even by for-profit standards.

PIRE seems to specialize in devising new and intrusive ways of government meddling in personal lives. One PIRE success story helps to coerce retailers to card octogenarians who dare to try to buy a bottle of Cabernet. (“This method of enforcement gives retailers the necessary incentive to comply with the state’s law regarding the sale of alcohol, given that their next customer could be part of a compliance check. The Pacific Institute for Research and Evaluation (PIRE) has developed a detailed document to assist in the development and implementation of compliance checks.” See:
http://www.nhtsa.dot.gov/people/injury/alcohol/dotpartners/chapter_5.htm

PIRE is an ardent supporter of the War On (Some Politically Unacceptable) Drugs, also known as an excellent way for Feds and contractors to fleece the public in a war that will never end, eviscerate the Fourth Amendment, and create a police state with perfectly legal no-knock raids. One PIRE researcher who focuses on “middle-school-based drug prevention programs” and has written a paper claiming anti-drug programs in schools actually work:
http://www.nida.nih.gov/Meetings/Prevention/PrevBios4.html

PIRE also supports higher taxes on alcohol and firmly opposes lowering the minimum drinking age to be akin to Europe or Canada (something that would probably do much to limit abuse). See:
http://www.higheredcenter.org/thisweek/tw010629.html
http://resources.prev.org/documents/BeerTaxesNewsRelease.pdf

TechCrunch Exposes D.C. Trade Association Advocacy for REAL ID

In an excellent post, Michael Arrington at TechCrunch notes the advocacy of the Information Technology Association of America in favor of the REAL ID Act, our nation’s moribund national ID law.

His title “Conflicts of Interest: …” draws out nicely the schism that ITAA’s advocacy for REAL ID creates for its membership. They work to serve us when they sell products directly, but work to hurt us when they sell surveillance infrastructure to the government. Helpfully, he also provides links to information about the House and Senate bills to repeal REAL ID.

Asked in the comments how he would characterize himself politically, Arrington replies, “hard core libertarian.”

Legal Trends in Bioethics

Starting with the fall issue of The Journal of Clinical Ethics, my “Legal Trends in Bioethics” column will be available on the Cato website at time of publication instead of only several months later. That means the information provided will be more up-to-date and relevant for anyone interested in tracking legal issues in bioethics.

For those not familiar with the column, it tracks bioethics related issue through all stages of litigation, legislation, and regulation at both the federal and state levels, as well as occasionally mentioning exceptional legal developments in other countries. The topics covered are not always exactly the same, but usually there are sections on informed consent, abortion, children’s rights, vaccines, organ procurement, HIV, mental illness, medical privacy, unconventional treatment, right-to-die, stem-cell research and other new technologies, among other topics depending on what bioethics topics are of legal concern in the U.S.

The column tries to be comprehensive as far as reporting the most relevant developments at each level of government and in each topic area. It is a very useful tool for doing exactly what its name implies – tracking the “Legal Trends in Bioethics.” The following is the introduction to the fall column which will be published in The Journal Clinical Ethics and simultaneously become available on the Cato website next month:

The most troubling development in this quarter is the extent to which legislators continue to intervene in the patient/physician relationship by trying to regulate the relationship down to the smallest specifics of what is said and done. These developments are a great threat to both physician and patient autonomy, but while there have been many attempts to pass such invasive legislation, at this point, few of such bills have actually made it into law. It will be important to watch the next two issues of Legal Trends if someone is interested in seeing how many of such bills actually do end up as laws.

The issue of medical tourism is not new to bioethics, but it is on the brink of attracting more attention in U.S. courts and legislatures. There is no separate heading in “Legal Trends” for “medical tourism,” but it is important for anyone interested in the subject to regularly check the “Legal Trends’ subheading dealing with interesting developments in other countries. In this issue, for example, some Canadians are seeking a police investigation into an assisted suicide in Switzerland. Physician assisted suicide is legal in Switzerland, but illegal in Canada. At issue is whether Canadians have a legal right under Canadian law to travel to Switzerland to avail themselves of a practice that is illegal in their own country. In the United States there is a constitutional right to travel which would make it legal for the patient seeking physician assisted suicide to go to Switzerland (there is no case directly on point but the basic principle is well-established in U.S. constitutional jurisprudence), but even in the U.S., as in Canada, it may be possible to prosecute someone who assists that person in getting to Switzerland. This could be considered aiding and abetting a suicide. The Canadian suit has not even been filed yet, and no such case exists in the U.S., but it is an interesting issue to watch. It may come up as it did in Canada with respect to traveling to Switzerland where it is legal for physicians to assist foreigners in committing suicide (this is not true in the Netherlands); it is also likely to come up in connection with people suffering from kidney disease traveling to Iran, the only country where it is legal to purchase kidneys, and in other situations where the legality of the activity is not the issue but the price of medical treatment.

The “Legal Trends” from earlier this year are available on the Cato website or directly from The Journal of Clinical Ethics.

Upcoming Cato Forum on the Rights of Terminally Ill Patients

In 2006, a panel of the D.C. Circuit Court of Appeals ruled that terminally ill patients have a constitutionally protected right to purchase and use experimental drug treatments not yet approved by the federal government. 

On August 7 of this year, the full D.C. Circuit overturned the panel ruling, holding that terminally ill patients have no such constitutional right.

On September 25, this coming Tuesday, the Cato Institute will host a policy forum titled, “Should the Government Insert Itself between Dying Patients and Unproven Therapies?“ 

Debating the rights of terminally ill patients will be Scott Ballenger, the lead counsel for the plaintiffs in that case; Ezekiel Emanuel, a bioethicist with the National Institutes of Health and a leading critic of the panel’s ruling; and yours truly.

The forum will be from 12-1:30pm, followed by a luncheon.  Register here.

Questions For And About Michael Mukasey

George Will has some terrific questions for the President’s nominee to be Attorney General, Michael Mukasey.  I’m glad that Will is drawing more attention to the administration’s startling claim that all of America is a “battlefield.”  In a recent article for Legal Times, I urged the next attorney general to disavow that claim.  (For more detail, go here, and read pp. 7-15).

Will also cites an important new book by the Boston Globe’s Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American DemocracyHere is an excerpt from Will’s column:

The Constitution’s Framers, disliking the British sovereign’s “prerogative power” to set aside a law for a claimed public good, stipulated that the president shall “take care that the laws be faithfully executed.” But consider “signing statements,” whereby presidents, when signing legislation, attach statements sometimes directing the executive branch not to execute certain portions. This practice is, in effect, something the Constitution does not permit – a line-item veto. Savage, who won a Pulitzer Prize for his reporting on this president’s signing statements, writes that such statements were rare until the mid-1980s, when some conservatives urged frequent use of them as a means of maximizing presidential powers. Savage says: “If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions.” Is this a real danger?

Read the whole thing.

Also on the Washington Post editorial page is a piece by Bob Novak on the internal deliberations in the Bush White House regarding their pick for Attorney General.  Novak is very critical: “Mukasey is not well qualified to be attorney general by any rational standard.”

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.