Topic: Law and Civil Liberties

Senate Amendment Guts Immigration Reform

The Senate’s vote yesterday to cut the number of temporary worker visas in half knocks a big hole in the comprehensive immigration reform proposal now being debated in Congress. As I’ve written in a recent Free Trade Bulletin, allowing a sufficient number of foreign-born workers to enter the country legally to meet the obvious demand of our labor market is absolutely necessary if we want to reduce illegal immigration.

Ignoring our policy advice, the Senate voted 74-24 to adopt an amendment by Sen. Jeff Bingaman (D-N.M.) that would cut the number of annual temporary “Y visas” from 400,000 to 200,000. That number is almost certainly too low to provide the workers that our growing economy needs to fill jobs at the lower end the skill ladder for which there simply are not enough Americans available to fill them. The result, if the lower cap stands, will be continued illegal immigration.

The irony is that many of the senators voting to drastically reduce temporary visas are the same senators who warn that we should not repeat the mistake of the 1986 Immigration Reform and Control Act. That bill legalized 2.7 million illegal immigrants but was unable to stop more immigrants from entering the country illegally despite beefed-up enforcement. The real flaw of the 1986 law, however, was its complete lack of any temporary worker program to provide for future, legal workers.

By adopting the Bingaman amendment, a majority of senators have turned the current reform effort into something much more like the failed 1986 law. They have kicked the illegal immigration can down the road, leaving it to a future Congress to find a lasting solution.

Abortion Restrictions, Desperate Women, and Children Without Smiles

Moebius syndrome is a neurological disorder that causes facial paralysis, impaired speech, limb deformities such as club foot, difficulties eating, autism and an inability to smile. Moebius syndrome may have genetic roots but is also caused by misoprostol, a drug commonly used to induce abortions. In Brazil, where elective abortions are illegal, misoprostol is cheap and readily available. Moebius syndrome appears in 20% of children born after failed misoprostol abortions. Unfortunately, misoprostol abortions are also not very effective and 80% result in the pregnancy going to term. “Since the mid-1990s, dozens of cases of Moebius syndrome have been linked to misoprostol.” See the May 11, 2007 issue of Science [pdf].

Defining Misconduct Down

When the police search an innocent person, there will be no criminal case.  So no criminal court judge will review the legality of the search.  Even putting aside the airport searches, there must be tens of thousands of such ’innocent searches’ each year.  In this category of cases, the only real “check” on unlawful police conduct is a civil lawsuit.  As a practical matter, in most cases, the party aggrieved is not going to bother to hire a lawyer to sue the police because he was roughed up or whatever.  In a small percentage of cases, the party aggrieved will incur legal expenses and pursue the case.   But the Supreme Court is increasingly hostile to such lawsuits.   Excerpt from today’s LA Times:

In December 2001, Los Angeles County sheriffs were looking for four black suspects in an identity-theft scheme. One of them was known to have a gun. When the deputies set out to raid a home in Lancaster, they did not know the suspects had moved three months earlier. Rettele had bought the home in September and lived there with Sadler and her 17-year-old son.

At 7 a.m., seven deputies with guns drawn came to the door and were let in by the teenager. He was ordered to lie face down.

The deputies then entered the bedroom and ordered Rettele and Sadler to get up and to show their hands. They protested they were not wearing clothes, but the officers insisted they stand naked next to the bed for a minute or two.

After a few minutes, the deputies admitted they had made a mistake, apologized and left. …

Without bothering to hear arguments in the case, the Supreme Court agreed and ruled for the deputies. …

John Burton, a Pasadena lawyer who represented the plaintiffs, said his clients had left California and were living in Kansas.

“I think this means we are in a dark period for the Supreme Court,” Burton said. “This was a case of incompetent officers finding themselves in the home of completely innocent people, and knowing they are not suspects, orders them out of bed stark naked. This is bullying, and it needs to be reined in.”

I agree.  The government lawyers say the deputies “didn’t know” the suspects had moved three months earlier.  Well, they should have.  This is the distressing trend–too often the police are skipping the investigative work and raiding homes.  Conservatives usually say, “well, if the police run amok, people can sue.”   Here, the Supreme Court said the couple’s claim is so weak that it should not even be argued before a jury.  And the high court did not even bother to have attorneys fully brief and argue this matter before them.  This action sets the tone for future lawsuits.

As I said, most innocent people will let police misconduct (non-severe) go.  They will not even consult an attorney.  After this ruling, the subset of aggrieved individuals who do meet with an attorney may be told that they would just be wasting their time and money … that their case will very likely just get tossed out of court. 

Bottom line: if police misconduct goes unchecked, we will get more of it.

REAL ID Update

Lots of interesting things continue to happen with the REAL ID Act, America’s faltering national ID law. Passed in May 2005, it would have states issue drivers’ licenses and IDs to federal standards by May of next year.

The count of states rejecting implementation of this federal surveillance mandate has now reached 11, with Missouri, Georgia, and Nevada most recently joining the list of states opposed.

Interestingly, Department of Motor Vehicle bureaucrats in Nevada continue to move forward with REAL ID planning, despite the opinions of the state’s legislature. According to a Federal Computer Week article posted today, “Nevada’s Department of Motor Vehicles … is investigating facial recognition and various methods for sharing driver’s license information with other states and the federal government.” This, despite the legislature consistently cutting funding for implementation and passing legislation urging Congress to repeal REAL ID. But what’s a legislature to stand in the way of bureaucrats doing what they want to do?

Activity in other states continues. In Michigan, Rep. Paul Opsommer (R-DeWitt) has introduced a resolution urging Congress to repeal REAL ID. This has earned him plaudits from Lansing State Journal columnist Derek Melot, whose recent blog post about Opsommer’s bill was called “Somebody gets it.” Indeed Opsommer does. (Be sure to read the comments. Someone with behind-the-scenes knowledge has offered his take.)

At the federal level, Title III of the ballyhooed immigration reform bill might as well be called REAL ID II. It would spend $300 million trying to get states to implement the REAL ID Act. (This is both too much and too little. Too much, because REAL ID shouldn’t be implemented. Too little because implementation will cost the states and people over $17 billion dollars.) Most importantly, possession of a REAL ID-compliant license or ID card will be a condition of getting federal permission for working if Title III passes as written. The Department of Homeland Security is using immigration reform to try to resurrect its failed national ID plan, described by Senate Homeland Security Chairman Lieberman as “unworkable” when it originally passed.

Ashcroft: Closet Civil Libertarian?

A piece in yesterday’s Post points out that, contrary to John Ashcroft’s reputation as a lockstep defender of the administration’s war-on-terror policies, as attorney general, Ashcroft “at times resisted what he saw as radical overreaching”:

In addition to rejecting to the most expansive version of the warrantless eavesdropping program, the officials said, Ashcroft also opposed holding detainees indefinitely at the U.S. military base at Guantanamo Bay, Cuba, without some form of due process. He fought to guarantee some rights for those to be tried by newly created military commissions. And he insisted that Zacarias Moussaoui, accused of conspiring with the Sept. 11 hijackers, be prosecuted in a civilian court.

All true, but the article leaves out one of the most important occasions on which Ashcroft pushed back.  In 2002, the adminstration seriously contemplated extending the Jose Padilla treatment–that is, indefinite confinement at the will of the president, without charges or access to counsel–to all Americans suspected of terrorist activity.  As Michael Isikoff and Daniel Klaidman reported in Newsweek three years ago, in addition to Padilla, “officials privately debated whether to name more Americans as enemy combatants—including a truck driver from Ohio and a group of men from Portland, Ore.,” as well as the Lackawanna Six

For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer. That’s what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. “They are the enemy, and they’re right here in the country,” Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing “material support” to Al Qaeda. 

Indeed, though Ashcroft seemed to have been on board with the transfer of Padilla out of civilian custody, he apparently helped prevent a much broader assault on the rule of law. 

Now I think calling John Ashcroft a civil libertarian for this would be setting the bar pretty low.  But after nearly six years of radical overreaching, it’s hard not to fall victim to the “soft bigotry of low expectations.” 

Solving the Organ Shortage: A Move in the Right Direction

Jon Christiansen, a former Republican congressman from Nebraska, has founded an organization to create grassroots initiatives to help overcome resistance to providing organ donors with financial compensation.

Currently, under the National Organ Transplantation Act, it is illegal to provide “valuable consideration” for an organ. As a result, only altruistic donations are allowed and an average of seven people die every day waiting for an organ that never comes.

Christiansen’s new organization is called the American Organ Coalition. Christiansen, who is the group’s executive director, can be contacted by e-mail at jonlc [at] united [dot] net">jonlc [at] united [dot] net.

Immigration Reform = National ID?

Yesterday’s “breakthrough” on comprehensive immigration reform is indeed salutary. But as the Washington Post editorializes this morning, “It’s critical that in addressing one set of immigration problems, the legislation doesn’t create a new set.”

One potential problem is the creation of a national ID in the process of expanding worker surveillance for intensified internal enforcement. This was the subject of a hearing in the House Immigration Subcommittee at which I recently testified.

Like many, I’ll be watching carefully to see if a national ID system is part of the ineluctable logic of the immigration reform deal that has been struck. Ineluctably, I’ll be calling it like I see it.