Topic: Law and Civil Liberties

More on Sotomayor

Cato adjunct scholars on Judge Sotomayor:

Today’s Wall Street Journal reports that Sotomayor’s record on criminal justice issues put her to the right of David Souter.  Good grief — that would mean that for Sotomayer just about all the barriers on state power come tumbling down: structural safeguards like enumerated powers, non-delegation, separation of powers and the limits pertaining to police and prosecutorial powers.

For more background, go here and here.

Fusion Centers

Most people don’t care about government surveillance – just so long as they are not affected by it.  We want the police to be on lookout for trouble – so some surveillance is necessary for the work they do.  But how much?

After 9/11, state officials said they had difficulty “connecting all the dots.”  Fusion centers are supposed to remedy that problem.  Police departments around the country are creating databases (“fusion centers”) and the objective is to link them together so that the police can spot patterns of behavior so that crimes or terrorist attacks can be thwarted.

The goal seems sensible and worthwhile but as the details emerge on how fusion centers operate, the concept gets controversial fast.  Who will be monitored? What kind of information will be  collected?   And who decides when pieces of information should be discarded or entered into a massive database?  If false information about, say, YOU, goes into the database, will you ever learn about it?  Have an opportunity to erase it or correct it?

Fusion centers are springing up all over the country and they are coordinating the efforts of some 800,000 American law enforcement officers to collect information about anyone deemed suspicious. One problem is that terrorists are not of a monolithic character. Terrorists can be extremely religious or secular; they may be Arab, white, black or any other race; terrorists come from both rich and poor backgrounds; they come from the far right, the far left – and some are simply against society generally. And when criminals are added to the mix, the potential dragnet for this casual government surveillance potentially covers scores of people.

Behaviors that make someone eligible for government monitoring are quite broad. As noted by Bruce Fein in his testimony before Congress in April, citing a July 2008 ACLU report on fusion centers, such suspicious behaviors in one LAPD directive include “using binoculars,” “taking pictures or video footage “with no apparent aesthetic value,” “drawing diagrams,” and “taking notes,” among others.

Former vice-president Cheney might argue that the monitoring is not extensive enough.  He recently said (pdf): “When just a single clue goes unlearned … can bring on a catastrophe – it’s no time for splitting differences.  There is never a good time to compromise when the lives and safety of the American people are in the balance.”  National security, it seems,  requires that we get everyone into the central database for scrutiny.  We can’t afford any ”gaps” in the surveillance matrix.

I will be moderating a Cato event about fusion centers on Thursday, June 11, at noon.  The panel will include attorney Bruce Fein, the ACLU’s Mike German (who co-authored the report linked above), and Harvey Eisenberg, Chief of the National Security Section in the Maryland Division of the U.S. Attorney’s office. 

Prosperity in Washington

 The current Attorney General, Eric Holder, left DC’s Covington and Burling to return to the Justice Department, where he held a senior post during the Clinton years.  Holder’s mission is to supposedly ”rein in the free market excesses of the last eight years.”  Bush’s people are done with their own crackdown and are now returning to DC’s big law firms to warn their client business firms about the coming crackdown by Holder’s prosecutors.  This is sorta like the GOP legislators who are now trying to lodge complaints about Obama’s spending.  Despite the rhetoric, both sides aggrandize federal power and then enrich themselves (pdf) while advising businesspeople on how to comply with myriad regulations  from the alphabet agencies.

For related Cato work, go here and here.

A Lesson about Power

High school seniors pull a prank by pitching tents in the school courtyard and sleeping there overnight.  Does the school need to discipline them?  Perhaps.  Maybe have them stay after school and pick up litter or something.

But school officials want the police to arrest the students.  And when a student who had no involvement in the prank speaks out against the school authorities’ response by sending out an email, he too must be punished!  The lesson here is do not question authority.

Either praise your school principal or be very quiet and obedient.

Is Dr. Tiller’s Killer a Terrorist?

I’ve been intrigued to watch the foment about whether the man who killed Dr. Tiller is a terrorist.

At the ThinkProgress Wonk Room, Matt Duss says, emphatically, “Yes, Dr. Tiller’s Murderer is a Terrorist.” LifeNews.com, a nominal representative of the other “side,” is equally eager to report that abortion activists are calling pro-life advocates “terrorists.”

Mostly, it appears, the Tiller/terrorist question is emotional energy-drink for both sides of the abortion debate. We should let these ideologues be ideologues and move on. But it is worth thinking about the issue in terms of terrorism broadly and in terms of reducing violence prospectively.

Here’s an interesting statement of Duss’ about the killing: “It’s [sic] goal was to intimidate women against exercising their right to choose abortion, and to intimidate doctors who perform them.” Perhaps Duss has had an opportunity to interview Tiller’s killer, who has been highly forthcoming, but more likely Duss is imputing motives to the killer that fit his own worldview and that start an argument he wants to have.

Knowing nothing about the killer, I think it’s a possibility that he might have wanted to avenge what he sees as wrongful deaths that the doctor has brought about, with no contemplation of the prospective effect on women or doctors. The killer might have been trying to impress someone he knows who hated Dr. Tiller. Perhaps he suspected Dr. Tiller was sleeping with his wife (very unlikely, but possible). I don’t think that Duss is wrong, but ascribing motivations to people based on the results they cause is a fascinating habit. To match the hugely shocking results of the 9/11 attacks, President Bush supplied huge reasons that terrorists do what they do, and a deeply unproductive “war on terror” was on.

Now, if the goal is to reduce violence, calling Dr. Tiller’s killer a “terrorist” seems distinctly unhelpful. The criminal laws against homicide contain every penalty that the killer deserves, and he should get justice as the criminal law prescribes it. There is no criminal offense called “terrorism” - and there shouldn’t be, for reasons that follow.

The question in play with Tiller/terrorism goes to future violence - the actions of others. If Tiller’s killer has allies - direct allies or people who agree with what they think he was doing - calling him a “terrorist” will tend to exalt his actions to them. They will perceive it less as an ugly murder and more as political violence done for a cause - something righteous.

If Tiller’s killer were to become widely viewed as a “terrorist,” this would deepen the resolve of his “allies” because they would come to regard the political structure as arrayed against them and their cause. Tiller’s killer would look heroic to them, and his example is one they might seek to emulate in their ideological struggle.

The better approach is to methodically and calmly apply the criminal law to the killing - without rhetorical excess. Putting aside the “political” content will let the ugliness and sadness of the murder carry the day in terms of public attention. This will signal to abortion opponents who might be susceptible to “radicalization” that violence is something sad and pathetic people do. The criminal law accords criminals the justice they are due, families grieve, and the society moves on.

These messages will drain power from the idea of using violence to advance political aims. The best way to talk about the killing of Dr. Tiller is to deal with it only as a grisly and pathetic murder - if the goal is to protect doctors who perform abortion from future violence.

Haywood v. Drown

The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism.  The issue concerned the  extent to which the central government can commandeer state judicial systems.  Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.

Justice Clarence Thomas filed  another one of his sober, scholarly opinions in dissent and I think he makes the case rather well.  Excerpt:

The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.

Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.

Until this setback, the Court’s conservatives were doing well in this corner of the law.  In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction.  In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction.  This case stood for the proposition that state courts are not subject to federal direction.  Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.

Here’s a practical example to illustrate the problem.  It’s bad enough when Congress wants to pass a law like the Americans with Disabilities Act (pdf)–a law that will create a flood of litigation.  But what if Congress goes a step further and writes the law in such as way as to say ”take all those time-consuming lawsuits to the state courts. Federal judges and personnel can’t be bothered with that stuff!”  So state courts get clogged or state lawmakers must raise taxes to alleviate the added burden, which blurs accountability.  That’s what is likely to happen. Or, to be precise, continue to happen with increasing frequency.  The feds have permission to foist costs on to the states.

But, to be clear, the main issue here is the proper division of federal and state authority.  Even if Congress were to get around the problem of unfunded mandates by throwing money at the states, each state should retain control over its judiciary.  As Justice Thomas notes, the issue of federal supremacy is too often distorted by liberals.  Within its proper sphere, the feds are supreme.  Liberals want supremacy and federal authority that is plenary.  Wrong.  Obama’s Supreme Court nominee should be asked about federalism and the doctrine of enumerated powers at the confirmation hearings.

McCarthy Does Petraeus a Disservice

General Petraeus recently gave an interview to Fox News. Petraeus speaks approvingly of the decision to close Guantanamo, limiting interrogation to the techniques in the Army Field Manual, and how adherence to the Geneva Conventions takes propaganda fodder out of the hands of our enemies.

Andy McCarthy attacks Petraeus over at National Review Online’s The Corner:

With due respect to Gen. Petraeus, this is just vapid. To begin with, he doesn’t identify any provision of the Geneva Conventions that we have actually violated - he just repeats the standard talking-point of his current commander-in-chief that we took “steps that have violated the Geneva Conventions” during those bad old Bush days. What steps is he talking about? How about naming one?

McCarthy then uses the brief reference to the Geneva Conventions to attack strawman arguments as if Petraeus wanted to give full Prisoner of War status to Al Qaeda and Taliban fighters and had just proposed ending military detention of combatants picked up on the battlefield.

I’m pretty sure that Petraeus is not squeamish about keeping detainees in custody. As CENTCOM Commander, he’s got over 600 of them in Bagram.

When you watch the video it’s pretty clear that Petraeus was referring to the treatment of detainees and the use of “enhanced interrogation techniques” as violating the Geneva Conventions, a position consistent with his previous statements. Petraeus doesn’t supply a specific provision to satisfy McCarthy, but he is likely thinking about Common Article 3 of the Geneva Conventions of 1949.  This provision bans, even in a conflict of a non-international nature (read: counterinsurgency and counterterrorism), cruelty, torture, and humiliating and degrading treatment.

McCarthy is also broadly dismissive of the propaganda effect that Guantanamo has had in encouraging people to take up arms against US forces. This sentiment is counter to the doctrine that I learned in the Special Forces Detachment Commander’s Qualification Course. Low-level insurgencies and terrorism are driven by propaganda.

To build an insurgency, you don’t need to win battles. You need to take a few shots at your enemy and tell stories about how successful you were, even when you weren’t. Over time you get sympathetic parties to join your struggle and gain critical mass to move into outright guerrilla warfare.

To sustain a worldwide terrorist organization, you don’t need to actually pose an existential threat. You need to prod a superpower into deploying large troop formations into the Muslim world, where they can be entangled in local disputes over local grievances. Usama bin Laden is not the commander-in-chief of any significant armed force, but he can be the inciter-in-chief who makes broad claims about opposition to America. He tries to link local insurgencies to his global caliphate narrative even where they are not supportive of his broader goals. Check out David Kilcullen’s book, The Accidental Guerrilla, for a detailed discussion. Incidentally, Kilcullen worked for Petraeus as a senior counterinsurgency advisor in Iraq.

This is the propaganda war we are fighting, and most everyone agrees that we have not been doing it very well. Every time we drop a bomb in Afghanistan, the Taliban beat us to the punch with exaggerated (and mostly false) claims of civilian casualties. US forces are now reviving body count reports to counter Taliban propaganda. While I don’t think that body counts are a good metric for success in the long run, trying to be an honest broker of good and bad information blunts enemy propaganda.

McCarthy is wrong to mischaracterize Petraeus’ words and dismiss the propaganda war where we have largely been a punching bag. Cheerleading our military leaders who produce gains on the ground but dismissing the fundamental insights that produced their success is willful blindness.