Topic: Law and Civil Liberties

“Gangster Government” at Work

With the Obama administration preferring to rely on politics rather than the law to “fix” the auto industry, bondholders have discovered that the new politics of this administration is quite a bit more brutal than the old politics practiced by the Bush administration.

Henry Payne and Richard Burr write of “gangster government” using not just demagogic public attacks on greedy bondholders but apparent threats of regulatory sanction to get its way in bankruptcy court.  They explain:

The holdout debtholders sought the refuge of the courts, where decades of bankruptcy law promised that secured lenders would receive just compensation for their investment. But then Obama called in his fixers.

In his April 30 news conference, Obama singled out Chrysler’s self-described “non TARP lenders” as “speculators” who sought to imperil Chrysler’s future for their own benefit. “I do not stand with them,” Obama thundered. “I stand with Chrysler’s employees and their families and communities… . (not) those who held out when everybody else is making sacrifices.” Michigan Democratic allies like Sen. Debbie Stabenow and Rep. John Dingell piled on, calling the lenders “vultures.”

Then, on Detroit radio host Frank Beckmann’s show May 1, a lawyer for the lenders, Tom Lauria, chillingly revealed how “one of my clients was directly threatened by the White House and in essence compelled to withdraw its opposition to the deal under threat that the full force of the White House press corps would destroy its reputation if it continued to fight.”

Lauria later confirmed the threats came from Rattner and that the target was Perella Weinberg, which had suddenly withdrawn its opposition after the president’s April 30 press conference.

The White House denied the threats, but Business Insider subsequently reported that “sources familiar with the matter say that other firms felt they were threatened as well. None of the sources would agree to speak except on the condition of anonymity, citing fear of political repercussions.”

“The sources, who represent creditors to Chrysler,” continued the Insider story, “say they were taken aback by the hardball tactics that the Obama administration employed to cajole them into acquiescing to plans to restructure Chrysler. One person described the administration as the most shocking ‘end justifies the means’ group they have ever encountered… . Both were voters for Obama in the last election.”

The idea of the White House–with the IRS and SEC at its disposal–threatening investment firms should have sent off alarm bells in America’s newsrooms. Inexcusably, the media establishment largely ignored the hardball tactics. This is the same media that has doggedly reported on President Bush’s U.S. attorney firings and the post-9/11 interrogations of terrorist suspects.

I have no opinion on who should get what as part of Chrysler’s bankruptcy – other than that the taxpayers shouldn’t be paying for America’s version of lemon socialism so common around the world.  But crude political interference by the political authorities in Washington in a bankruptcy case erode the rule of law and administration of justice.  If Obama and company believe that the end justifies the end when it comes to handing the auto companies over to favored interests, who among us is safe from similar action by this or another administration in the future?

Former FBI Agent: Torture Sucks. Don’t Do It.

The Senate Judiciary Committee hearings produced an ugly picture of the role torture played in interrogating Al Qaeda leaders. The testimony of former FBI agent Ali Soufan shows how traditional intelligence techniques worked on Abu Zubaydah and “enhanced” techniques did nothing to advance national security interests:

Immediately after Abu Zubaydah was captured, a fellow FBI agent and I were flown to meet him at an undisclosed location. We were both very familiar with Abu Zubaydah and have successfully interrogated al-Qaeda terrorists. We started interrogating him, supported by CIA officials who were stationed at the location, and within the first hour of the interrogation, using the Informed Interrogation Approach, we gained important actionable intelligence.

We were once again very successful and elicited information regarding the role of KSM as the mastermind of the 9/11 attacks, and lots of other information that remains classified. (It is important to remember that before this we had no idea of KSM’s role in 9/11 or his importance in the al Qaeda leadership structure.)

Soufan then recounts a tug-of-war between the interrogators and the contractors brought in to apply the third degree. The intelligence and law enforcement professionals struggled to reestablish rapport with Zubaydah after each iteration of harsh interrogation tactics.

The new techniques did not produce results as Abu Zubaydah shut down and stopped talking. At that time nudity and low-level sleep deprivation (between 24 and 48 hours) was being used. After a few days of getting no information, and after repeated inquiries from DC asking why all of sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation.

We then returned to using the Informed Interrogation Approach. Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence.

The enhanced interrogation techniques were not only inferior to traditional interrogation techniques, they proved counterproductive. The use of illegal techniques resurrected the “wall” between the CIA and the FBI with regard to these detainees. This prevented FBI experts who knew more about Al Qaeda than anyone else in the government from questioning them. Plus, as Soufan recounts, coercive techniques make detainees tell you what you want to hear, whether it is true or not. As Jesse Ventura says, “you give me a waterboard, Dick Cheney, and one hour, and I’ll have him confess to the Sharon Tate murders.”

Torture did not advance the work of picking apart Al Qaeda, it disrupted it.

Handicapping the Justicial Horserace

The increase in chatter in Washington about Justice Souter’s replacement is a clear signal  that pundits have gotten about as much mileage as they can over speculation and want to have an actual nominee to dissect.

Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.

The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.

As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.

For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.

There Are Always Strings Attached…

Following up from my blog entry last week on Rep. Barney Frank’s (D, MA) efforts to reduce restrictions on Americans’ freedom to gamble online, it seems that the prospect of more tax revenue has made some folks see religion.

An article from Texas Insider has details on the political shenanigans needed to get this bill passed, including an associated bill introduced by Rep. Jim McDermott (D, WA) to tax (at a rate of 2%) the deposits into online gambling accounts. Apparently, that could provide up to $43 billion in tax revenue over 10 years. For the children.

Apparently we get our freedoms restored with a side-dish of tax.

As an aside: Note long-term opponent Rep. Bob Goodlatte’s (R, VA) non-sequitur on why allowing the Frank bill to pass is a bad idea:

Apparently, Rep. Frank believes that [Treasury Secretary] Timothy Geithner can do a better job at enforcing our nation’s criminal laws than the Department of Justice, which is scary considering [Geithner’s] track record on complying with the tax code,” he said.

(he is referring to the Frank bill’s proposal to shift responsibility for the licensing and regulation of online gambling companies to the Treasury)

HT: hero of the revolution Radley Balko.

Civil Liberties Surge

There’s encouraging news in recent polls about two civil liberties issues — marriage equality and marijuana legalization — and it’s got some observers talking about “tipping points” and “a bandwagon effect.”

Take marijuana: A poll released yesterday by Zogby and the O’Leary Report found that 52 percent of respondents would favor legalizing marijuana, with 37 percent opposed. That’s the first poll I’ve seen that found a majority in favor. (The poll was released in a full-page ad in The Hill newspaper on May 6 and does not appear to be online. It had a sample of 3,937 voters from the 2008 election, weighted to reflect the election outcome. Presumably it was an online poll, but if it had any bias it appears to be in a conservative direction: other results included 57 percent support for the “tea parties,” 71 percent opposition to new gun control laws, 57 percent opposition to cap-and-trade, and 53 percent opposition to legislation that would pressure radio stations to provide “diversity.” Of course, it’s kind of scary that only 53 percent of respondents opposed ideological censorship of radio.)

Whatever you think of that poll, it’s not the only one. In February, Nate Silver posted a chart of polls on legalization, showing a slow but steady rise, up to about 40 percent. A Field poll in April showed that 56 percent of Californians support legalizing and taxing marijuana, the first time Field had ever found a majority in favor. The poll was largely on budget issues, and voters may have been desperately searching for new revenue sources other than general tax hikes. Also in April an ABC News/Washington Post poll found 46 percent of respondents in favor of legalizing the use of small amounts of marijuana, an all-time high in that poll.

The New York Times points to other signs of change on the marijuana front: Pot has become essentially legal for anyone in California who can tell a medical marijuana clinic that it would make him feel better. Attorney General Eric Holder has said that the federal government would back off its attempt to enforce the federal laws against medical marijuana in the 13 states that have legalized medical use. The threats to prosecute Michael Phelps for a bong hit were widely ridiculed. These developments have led Andrew Sullivan and CBS News to speculate about a “tipping point” for change — at last — in marijuana prohibition. Just this week, California governor Arnold Schwarzenegger said there should be a major study of the possibility of legalization.

Meanwhile, TPM and AOL’s PoliticsDaily also see a tipping point for marriage equality. A majority of New Yorkers now join Gov. David Paterson in supporting same-sex marriage. That same ABC News/Washington Post poll finds that “in 2004, just 32 percent of Americans favored gay marriage, with 62 percent opposed. Now 49 percent support it versus 46 percent opposed — the first time in ABC/Post polls that supporters have outnumbered opponents.”

Over the past decade many states have passed bans on gay marriage, a fairly redundant exercise since none of those states had or were about to have marriage equality. But suddenly, since the narrow victory for California’s Proposition 8 in the 2008 election, and really within the past month, same-sex marriage is picking up steam. The Iowa Supreme Court ruled unanimously that excluding same-sex couples from marriage violates the Iowa Constitution’s equal protection guarantee.  The Vermont legislature passed marriage over the governor’s veto. The Connecticut legislature and Republican governor Jodi Rell affirmed the state court’s ruling for marriage equality. Maine governor John Baldacci signed into law a freedom-to-marry bill overwhelmingly approved by the Senate and House. The D.C. Council voted 12-1, with only well-known marriage defender Marion Barry in opposition,  to recognize same-sex marriages from states that approve them. Both houses of the legislature in crusty libertarian New Hampshire have passed a gay marriage bill, which now awaits a decision by Democratic governor John Lynch. Marriage advocates are optimistic in New Jersey.

Some of these laws may be overturned by Congress or by popular vote. And some 30 states have constitutional bans on gay marriage, limiting the opportunity for progress in most of the country. But one of the striking things about the rapid succession of votes is the lack of public opposition. Conservatives have been remarkably silent, perhaps because some of them genuinely do feel less outrage about legislative action than about ”judicial tyranny,” and perhaps because opposition to gay marriage is getting to be embarrassing among educated people. My former colleague Ryan Sager, best known for his book The Elephant in the Room: Evangelicals, Libertarians and the Battle to Control the Republican Party, argues in his new Neuroworld column “that we may be starting to see a ‘bandwagon effect’ that will significantly increase support for gay marriage in the next few years.” He cites Nate Silver’s chart on rising poll support for marriage equality and notes that support for gay marriage is rising much faster than support for interracial marriage did in an earlier era. Zogby asks the same question: Has the tide turned for same-sex marriage?

One striking point in all these polls, of course, is the age difference. That ABC News/Washington Post poll “showed just how much of the movement is occuring among younger voters. Support for gay marriage has grown somewhat among voters over age 65, from 15 percent to 28 percent, but six in 10 remain strongly opposed. Among those under 35, though, two-thirds support it, up from 53 percent in 2006, and nearly half support it strongly.” And “[s]upport for legalizing small amounts of marijuana for personal use is nearly twice as high among young adults (57 percent of those under 30) as seniors (30 percent), with middle-aged Americans split about evenly.” Obama carried young voters by 2 to 1. If the Republicans get out front on opposing marriage equality and marijuana reform, they can make that a permanent Democratic majority.

By the way, that much-discussed ABC/Post poll also showed declining support for gun control. Trapped in the liberal-conservative paradigm, ABC discusses that point this way: “Other views tilt more to the right. Just 51 percent in this poll support the general principle of “stricter gun control laws,” about the same as last September (50 percent) and down sharply from its peak, 67 percent in mid-2000. The 48 percent now opposed to gun control is the most in polls dating to 1989, and the number “strongly” opposed, at 36 percent, its highest in that time. ” Those of us who have escaped the liberal-conservative paradigm recognize that the right to bear arms is also a civil liberty, and it’s entirely consistent to support marriage equality, marijuana legalization, and the Second Amendment.

The “shift to the left” that we seem to observe on economic policy is depressing to libertarians. But that’s mostly crisis-driven. When the results of more spending, more taxes, more regulation, and more money creation begin to be visible, we may see the kind of reaction that led to Proposition 13 and the election of Ronald Reagan at the end of the 1970s. Meanwhile, this cultural “shift to the left” is far more encouraging. And don’t forget, at 90 days into the Obama administration, Americans preferred smaller government to “more active government” by 66 to 25 percent.

Supreme Speculation

With no hard news to report and the Supreme Court not in session — they’ll release opinions in the remaining cases on successive Mondays (plus the Tuesday after Memorial Day) beginning May 18 — Washington is abuzz with speculation over potential high court nominees.  While Senator Orrin Hatch earlier this week said he expected an announcement this week, the White House is far more likely to take its time vetting candidates, with no real pressure to announce a pick until the Court recesses at the end of June. 

Nobody other than the president himself really knows who’s favored, but ABC News’s Jan Crawford Greenburg — who will be contributing to this year’s Cato Supreme Court Review and speaking at our Constitution Day conference September 17 — has some fascinating scuttlebutt:

No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.

Obama, the thinking goes, could score huge points with Hispanics, an important and increasingly powerful constituency, by nominating Sotomayor or another Latino. Sotomayor has a compelling life story, moving from the projects to the nation’s most elite educational institutions and then onto the federal bench.

But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer — something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness — which could be problematic on the high court.

Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood — prospects who could be considered judicial rock stars capable of going toe to toe with Scalia and Roberts.

I would expect Senators Claire McCaskill (D-MO) and/or Amy Klobuchar (D-MN) also to be on the shortlist — more likely the former because she was one of Obama’s first supporters in the Senate (and whose replacement would be appointed by a Democratic governor).  Senators have historically been fairly easy to confirm because of the courtesy extended to them by their erstwhile colleagues.  Still, we haven’t had such a nominee — or anyone other than sitting appellate judges — in the poisonous post-Bork world, so all bets are off.

Were it not for Ricci v. DeStefano, Sotomayor would be a shoe-in on the simple formula of Princeton+Yale Law+Second Circuit+Hispanic woman.  Now, and also for the reasons Jan cites, that is looking less likely.  I still favor Wood because she has a proven judicial temperament, sterling qualifications in technical fields like antitrust and trade regulation, and would be no worse — and quite possibly better — than the other contenders on constitutional issues.  If I were putting money on it, however, I would have to go with Kagan precisely because she was so recently vetted and confirmed (61-31, with Arlen Specter voting ”no” under Scottish law because he felt she hadn’t sufficiently answered his questions).

9/11 Memorial? Good. Eminent Domain Abuse? Bad.

The power of eminent domain, embodied in the Takings Clause of the Fifth Amendment, is so great that it nearly invites abuse, even when the government uses its power for constitutional, and even honorable, reasons.

Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11.  The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.

As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.

While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:

“It’s absolutely a surprise. I’m shocked by it. I’m disappointed by it,” said Tim Lambert, who owns nearly 164 acres that his grandfather bought in the 1930s. The park service plans to condemn two parcels totaling about five acres — land, he said, he had always intended to donate for the memorial.

“To the best of my knowledge and my lawyer, absolutely no negotiations have taken place with the park service where we’ve sat down and discussed this,” Lambert said.
Lambert said he had mainly dealt with the Families of Flight 93 and said he’s provided the group all the information it’s asked for, including an appraisal.

Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here.  Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?

Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.

H/T: Nicki Kurokawa.