Topic: Law and Civil Liberties

The ‘Inane and Insane’ World of Federal Criminal Law

Over at  Sentencing Law and Policy, Douglas Berman takes a look at a recent federal case:

I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here.  Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by “proving” state crimes to a federal district judge (by a preponderance of evidence) at sentencing.  Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end-run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.

It’s not just one case.  This is a trend in the federal courts.  In my new book, In the Name of Justice, I identify many other ways in which the government is going over, under, and around the Bill of Rights.

Is Anyone in Washington Listening?

As my colleague Ian Vásquez wrote a couple of weeks ago, Latin Americans are fed up with the war on drugs. The F[ailure] Word is increasingly being used in the region to describe Washington’s prohibitionist strategy. Just take a look at today’s Wall Steet Journal op-ed by former presidents Fernando Henrique Cardoso (Brazil), César Gaviria (Colombia) and Ernesto Zedillo (Mexico).  And last week, Caracol TV, Colombia’s main TV network, started airing a highly-publicized three-hour documentary called “Won Battles, Lost War” on the futility of the War on Drugs in that country. Over the last year, other Latin American leaders have also been calling for a different approach to drug trafficking that range from decriminalization to legalization.

During last year’s campaign president Obama promised to treat Latin Americans as partners. It remains to be seen if anyone in his administration is listening to these calls.

The Federalist Society’s ‘War on Terror’

I have been a proud member of the Federalist Society and have long appreciated the institution as a a valuable resource for libertarians and conservatives. It has none of the sinister shadowiness that the left sometimes tries to stick it with.

But an event invitation I received today suggests that the organization is a little bit stuck - in reactive, undisciplined thinking about counterterrorism.

The War on Terror: Litigation Update is an event happening tomorrow at the National Press Club. The title and introduction six times use the term “war” with reference to terrorism-related cases and legal issues, and it asks, “Will the new administration’s policies remain grounded in the laws of war, or will they switch to a pre-September 11 law enforcement paradigm?”

Stating the alternatives this way is too slanted to go without comment. It implies that the lone alternative to a war footing is hapless dawdling.

Dawdling is not the only alternative to “war,” of course, and the Federalist Society’s tradition of thoughtful intellectual discourse is demeaned by the suggestion that it is.

At our counterterrorism conference in January, we explored how excessive reactions to terrorism and terrorist acts can be self-defeating. Among other things, trying terrorists in military tribunals and specially designed national security courts will tend to exalt terrorists and tell the world that they are a force we struggle to reckon with. This wins them support and recruits.

The better approach is to treat terrorists as criminals, with transparent fairness, which will drain the romanticism from their deeds and stories. Terrorists hate to be treated like criminals. The first of the “five demands” in the 1981 IRA hunger strike was the right not to wear a prison uniform. Treating them as ordinary criminals saps their legitimacy and the strength of their challenge to incumbent power in the eyes of key audiences.

By using an unfair characterization of the alternatives and binding its inquiry so tightly to the “war” metaphor, the Federalist Society is being intellectually dishonest and unhelpful in the effort to defeat terrorism. Hopefully, it will correct this error in the future.

Stepping on My Posse Comitatus Nerve

My colleague Ben Friedman has previously blogged on the brigade-sized homeland defense element that the Army is putting on standby for domestic emergencies. Like Ben, I think that this sets a bad precedent for future domestic military deployments.

Plenty of civilian officials and military officers share this sentiment and don’t want to make homeland security a military proposition, like this Air Force JAG officer writing on the fictional military coup of 2012, and this Army JAG reservist discussing the pre-9/11 erosion of the Posse Commitatus Act. It is worth noting that the Department of Justice would be the prosecuting agency for Posse Commitatus violations, so you would need an ahistorical self-policing executive branch to provide real deterrence.

So color me a little bothered by a joint military police-highway patrol DUI checkpoint. While it is passed off as a “show of good relations between our two departments,” it is not a sight that the American public should get too accustomed to. Neither is a National Guard exercise using a local town for cordon and search training. As a unit representative explains, “[w]e will need to identify individuals that are willing to assist us in training by allowing us to search their homes and vehicles and to participate in role-playing.” Count me out. At least the guy acknowledges that “this operation could be pretty intrusive to the people of Arcadia.”

In many ways, the line between civilian and military spheres of government is the line of liberty. Separating our common defense from our domestic tranquility was the vision of the Founders, and we shouldn’t turn our back on it lightly.

UPDATE: Since I wrote this, the National Guard decided to scale back the exercise. So much for my career as a Third Amendment crusader.

New Podcast: ‘Prospects for Drug Policy Reform’

Federal drug policy has changed only slightly in the last 30 years, but Ethan Nadelmann, executive director of the Drug Policy Aliance, an organization that promotes policy alternatives to the drug war, says he’s optimistic about the future.

He spoke at the Cato Institute this week to address the increasing violence in Mexico between the government and drug cartels. In today’s Cato Daily Podcast, Nadelmann discusses how the nation’s approach to drug policy could change under the new administration:

I’m feeling strangely optimistic these days. I think part of it is that Obama’s coming into office has just opened up a sense of something new being possible… These Democrats—Pelosi, George Miller, Henry Waxman, John Conyers, Barney Frank, and others—they understand that the drug war is a failure. They’re not going to show real leadership on this issue in the short-term future, but there’s at least an understanding about what’s so fundamentally wrong.

Criminals Caught on Tape?

It’s not surveillance film from a bank or gas station hold-up — it’s guys in lab coats who seem to be helping the police and prosecutors by making evidence “fit” a murder charge

This particular case is not for the faint of heart. The film shows an autopsy of a young girl whose parent claims she drowned in the bath tub. Prosecutors say it was murder. The forensic “experts” appear to be putting bite marks on the child’s dead body using a plaster mold of the defendant’s teeth. 

Assuming that’s right, how perverse is that? The government’s scientists put the marks on the child, snap some photos of the marks, and then show those pictures to the jury and declare, “The bite marks match the defendant.” 

You might think that once the film is brought to the attention of the District Attorney, he’d disavow the case against the parent and have the “scientist” arrested for tampering with evidence. Sadly, it doesn’t work like that. The authorities are probably hiding under their desks, hoping this story will just go away. Because if this is not an isolated incident and someone takes a serious look at all the cases these ”experts” have been involved in, lawsuits will be filed, careers will end, and grand juries may be convened. Super-sleuth Radley Balko has been on the trail of these junk scientists for the past year or two. 

60 Minutes should investigate this thing further.

Fighting for Economic Liberty

While assaults on economic liberty from the Bush-Obama administration continue in Washington, the Institute for Justice is taking on another fight for the right to earn a living, this time in Boston. Erroll Tyler wants to use state-of-the-art amphibious vehicles to pick up and drop off passengers in Kendall Square in Cambridge and tour historical sites along a fixed route in Boston and Cambridge. But the city won’t issue him a sightseeing license, ostensibly because of a moratorium on such licenses instituted because of the disruptive Big Dig project – which finally ended six years ago. Ironically, one of the sights Tyler would like to show to visitors is the USS Constitution.

The Institute for Justice has come to his aid, with a lawsuit in federal court and this video, featuring Cato senior fellow Randy Barnett, author of Restoring the Lost Constitution:

The Boston Globe asks, “What does it say about the climate for small businesses in Boston and Cambridge that a guy with a promising business plan needs to turn to out-of-state libertarians to protect his interests in federal court?”

One might also ask what it says about the liberals and conservatives in Massachusetts. Don’t they want to help entrepreneurs?