Topic: Law and Civil Liberties

Friday News Roundup

Friday News Roundup: 

  • Prosecutors are still fighting to keep Genarlow Wilson behind bars. His case is now going to the Georgia Supreme Court. Previous coverage here.
  • There are a handful of prisoners that would actually prefer to stay imprisoned at Guantanamo Bay. They would rather stay than be deported to a country like Libya where they may face torture and execution. Curiously, U.S. officials can’t seem to accomodate the handful of guys who wish to remain at Gitmo.
  • An appeals court rejects former attorney general John Ashcroft’s bid for legal immunity in a case involving the abuse of detainees in U.S. prisons. Government lawyers continue to fight the lawsuit on other grounds. Previous coverage here.
  • The FBI has discovered more wrongdoing with respect to its use of National Security Letters. This might be another case of “telling the truth slowly,” a technique that the Clintons perfected and that others like to emulate. Previous coverage here.
  • The FBI director, Robert Mueller, likes to use an expensive anti-terrorism plane to give speeches around the country. Congress must share the blame for this sort of thing. As I pointed out in this paper, if Congress throws billions into the federal bureaucracy to “fight terrorism,” don’t be surprised if the definitions of “terrorism” and “homeland security” get stretched and twisted.
  • Last, Attorney General Alberto Gonzales faces more scrutiny for his shifting explanations regarding his conduct in office. In an attempt to deflect attention away from himself, Gonzales keeps traveling around the country to give away federal largesse on various crime-fighting initiatives. He says he’s not paying attention to the investigations and the no-confidence vote this week in the Senate, but no one really believes him. Gonzales needs to follow Rumsfeld and Wolfowitz into retirement.

Looking forward to next week.

Enemy Combatants

The Al-Marri ruling  (pdf) this week brings the “enemy combatant” controversy back into the news.  I addressed the Al-Marri case in this article (pdf) for the Cato Supreme Court Review (see pp. 37-39).  In the article, I set forth a legal framework for analyzing the competing claims of security and liberty.  I think factors such as citizenship and place of capture matter. 

President Bush advances the sweeping claim that the entire world, including every inch of U.S. territory is a “battlefield.” He then argues that the “battlefield” is no place for police officers, search warrants, trials, and judges.  There are no rights on the battlefield.  Bush is the commander-in-chief and he’ll decide who needs to be killed or locked up.  And his decisions are final.  No “second-guessing” by the Congress or the judiciary.

Despite his sinking poll numbers, Bush’s dangerous legal claims are alive and well.  This evening, Bush could have any American secretly arrested and put on a plane for incommunicado detention and interrogation at Guantanamo.  This is what a federal appellate court ruled in the Padilla case.  And just when it looked as if the Supreme Court was ready to overturn that case and declare Bush’s policy (at least with respect to citizens in the USA) illegal, the Bush administration suddenly moved Padilla from military custody to civilian custody where he is now on trial in Florida.  Bush’s lawyers told the Supreme Court that there was no longer any need to hear the case–since Padilla was no longer in military custody.  Unfortunately, the Supreme Court agreed.  By declining to hear Padilla’s appeal, the lower court precedent approving Bush’s sweeping legal claim was left in place.  If an American were to be sent to Guantanamo this evening, it would take several years of litigation before the Supreme Court would be ready to rule on the matter.  It is thus no exaggeration to say that right now the liberty of every American rests upon the grace of the White House.

Al-Marri’s case is about non-citizens imprisoned in military brigs inside the United States.  Al-Marri is a citizen of Qatar.  He entered the U.S. one day before the 9/11 attacks and the government says he is a terrorist and his mission was to engage in follow-on attacks here in the U.S.  He was initially arrested and charged with criminal offenses, but then he was declared an “enemy combatant” and was moved to a military brig.  He has been imprisoned in a South Carolina military prison for four years while his attorneys challenged the legality of his imprisonment.  This week a federal appeals court ruled that Al-Marri must be (1) deported; or (2) charged with a crime; or (3) released from custody.  The U.S. military cannot continue to keep him locked up.

This outcome creates  a weird situation in which an American can be held in military custody, but a legal immigrant cannot be.  I don’t agree with everything in the Al-Marri ruling, but it does reject Bush’s most sweeping claims about his power.  Excerpt: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution – and the country. … We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

Mr. Bush’s lawyers say they plan to appeal the ruling.

For a complete report on the Bush administration’s constitutional record, read this.

You’re Not the Boss of Me

A headline in the Los Angeles Times reads,

GOP senators getting visit from boss on immigration

And who is the boss of 49 Republican senators? Minority Leader Mitch McConnell? 50 million voters? No, the Times is referring to President Bush. Thankfully, the suggestion that the president is the “boss” of the Senate appears only in the headline, not in the text of the article. But even headline writers should remember that Congress is created by Article I of the Constitution, and the president by Article II.

The president is not the boss of the Congress. Nor is he the commander-in-chief of the United States, as Sen. John McCain has said. Small-r republicans need to keep reminding people that what Gene Healy calls “the bipartisan romance with the imperial presidency” is not rooted in the American system.

Here’s to You, Mrs. Swedenburg

Juanita Swedenburg, the Virginia winemaker who took her battle for economic liberty to the Supreme Court and won, died June 9 at the age of 82. Clint Bolick, who argued her case as a lawyer for the Institute for Justice, discussed it in his new book David’s Hammer:

My curiosity was sparked, however, during a visit in the early 1990s to a small winery in bucolic Middleburg, Virginia.  The proprietor was a striking older woman, Juanita Swedenburg, who owned and operated the winery with her husband.  She produced several good wines, including a chardonnay with the toastiest nose I can remember.  We got to talking and Mrs. Swedenburg asked me what I did for a living.  When I told her that, among other things, I challenged regulatory barriers to entrepreneurship, she exclaimed, “Have I got a regulation for you!”          

Most states, it turned out, prohibited direct interstate shipments of wine to consumers.  So that if tourists from another state visited Mrs. Swedenburg’s winery and asked how they could obtain her wines back home, she would have to reply, “You can’t.” …

As a descendant of settlers who fought in the American Revolution, Mrs. Swedenburg was outraged that such a stupid law could exist in a nation with the greatest free-enterprise system in the world. 

Eventually, Bolick writes, the Institute for Justice took Mrs. Swedenburg’s case to the Supreme Court. He argued against a New York law, and Stanford law school dean Kathleen Sullivan (who also spoke recently at the Cato Institute) argued against a similar Michigan law. The Court ruled 5-4 that such laws “deprive citizens of their right to have access to the markets of other States on equal terms.” When Bolick launched his new book at the Cato Institute in April, Mrs. Swedenburg was sitting in the front row.

Juanita Swedenburg was the kind of citizen a free republic needs. After a career in the foreign service, she and her husband “retired” to a Virginia farm that had been in business since 1762. They set up a winery and worked seven days a week to make it a success. As the Washington Post says, “Mrs. Swedenburg did not take the Constitution for granted.” She knew that there was something wrong with a law that prevented willing customers from buying the fruits of her labors, wherever they lived. And when she found a lawyer who shared her enthusiasm for both wine and constitutional liberty, she pressed him to take the case on behalf of her and her customers.

Like John Peter Zenger, Rosa Parks, Allan Bakke, Michael Hardwick, Bill Barlow, and many others, Mrs. Swedenburg made our constitutional rights real by using them. Raise a glass to her memory.

The House Votes on Cloning: Good News! Bad News!

Last Wednesday the House held a surprise vote on Rep. DeGette’s (D-Colorado) Human Cloning Prohibition Act of 2007. The bill that would prohibit reproductive, but not therapeutic cloning was defeated by only nine votes. That same morning, the White House issued a “Statement of Administrative Policy” declaring “The President unequivocally opposes all forms of human cloning” and that the President would veto any bill that allows even therapeutic cloning. The good news is that the House bill did not pass. The bad news is that Congress, the President, and a dozen or so states would like to ban at least some forms of cloning.

The Act would have prohibited human cloning which it defines as “the implantation of the product of human somatic cell nuclear transfer technology into a uterus or the functional equivalent of a uterus.” It would have prohibited both actual human cloning and any “attempt to perform” human cloning. The bill did not define “equivalent of a uterus” or what would constitute and “attempt” to perform human cloning. Vagueness is a problem in all efforts to ban cloning because of the possible chilling effects such prohibitions can have on scientific advancements. Ten years in prison or a ten million dollar fine would be a harsh penalty to pay for a misunderstanding of scientific motives.

Science is no longer something done in the basement of a mad scientist’s mansion. Scientific inquiry requires teams of researchers with universities or research institutions to back them. It is possible to conceive of one mad scientist or even one mad scientist who convinces another to go along, but a whole team of mad scientists? That is not only highly unlikely, but nearly impossible. The only way something that horrific could conceivably happen is if government sponsored a highly top secret project. No one in the private sector could command that amount of secrecy without the public finding out what was going on.

This isn’t the first time there have been efforts to ban new reproductive technologies for fear of mad scientist and monster babies. There were cries to ban in vitro fertilization (IVF) in the 1970s, but Congress never passed any such laws, and the research proceeded without the creation of any “monster babies,” only millions of happy infertile couples who now have children – children, who by most estimates, have fewer birth defects than children born without the assistance of reproductive technologies.

Cloning is an integral part of several potential medical advances. It is essential to embryonic stem cell therapies, potential infertility therapies, and possible genetic therapies. The best course of action for the federal government is no action at all. If we are lucky, Congress and the President will remain at loggerheads long enough for cloning to continue to play its part in the advancement of science. But, what might happen at the state level is another story.

Forty Years of Loving

Tuesday is the 40th anniversary of Loving v. Virginia, in which the Supreme Court struck down Virginia’s ban on interracial marriage. It’s a good time to reflect on the social progress that Brink Lindsey discusses in The Age of Abundance: How Prosperity Changed America’s Politics and Culture. Indeed, the Freedom to Marry Coalition has been celebrating the anniversary with a series of newspaper ads highlighting the interracial marriages of such prominent Americans as Jeb Bush, Mitch McConnell, Clarence Thomas, Jim Webb, and Tiger Woods.

But Virginia’s attempts to impede the course of true love didn’t begin or end with its “anti-miscegenation” statute. As I noted for Reason a couple of years ago, in the early part of the 20th century the state was in the habit of sterilizing “imbeciles.” The Supreme Court, influenced by Progressivism, approved that exercise in social engineering. And in our own times, Virginia has been repeatedly banning same-sex marriage, not worrying excessively about how much collateral damage it does to wills, custody agreements, medical powers of attorney, or joint bank accounts.

I wrote about the state’s tradition of interfering with private choices:

Neither of these now-derided laws is a perfect match with the predicament facing gays in Virginia, but both flowed from an arrogant desire by the state to control private relationships. The state is schizophrenic about such things, but if the past is any indicator, things do not look good for gay Virginians. In the 1995 case of Sharon Bottoms, the Virginia high court took a two-year-old child away from his lesbian mother, because of her sexual orientation. If voters pass the amendment against gay marriage and civil unions next year, it would have real teeth. Already, many gays in Virginia are talking about moving to Washington or Maryland if what they view as an anti-gay crusade doesn’t recede. If things continue on their present course, the state might have to amend its slogan, “Virginia is for lovers,” to include the caveat, “some exceptions apply.”