Topic: Law and Civil Liberties

TSA Screening as ‘Security Theater’

Yesterday, 60 Minutes interviewed Security Expert Bruce Schneier about Transportation Security Administration (TSA) screening practices at airports.  A timely report as the travel crush gets underway.

Bruce Schneier will be speaking at Cato’s Counterterrorism conference next month.  Also, check out today’s podcast with another conference speaker, former FBI agent, Mike German.  The conference is part of a three-year Cato initiative on counterterrorism and civil liberties.

Inside the Dept. of Homeland Security

Jeffrey Rosen has an article up at The New Republic criticizing the Department of Homeland Security as a bipartisan effort to be seen doing something about terrorism.  Unfortunately, that something fails any rational cost-benefit analysis:  “Both parties seem incapable of acknowledging an uncomfortable but increasingly obvious truth: that the Department of Homeland Security was a bureaucratic and philosophical mistake.”  Go read the whole thing

Rosen cites security expert Bruce Schneier on the misallocation of funds to security cameras.  These cameras proved ineffective in preventing the 7/7 bombings in London, and the capture of the bombers was due largely to good intelligence and police work, not camera systems.  New York City immediately jumped on the camera bandwagon in spite of their dubious utility in terrorism and crime prevention.  As Schneier puts it, “[t]he question isn’t whether the cameras are useful; the question is whether they’re essential–or would it be better to spend that money on the policeman on the beat?”  Check out Schneier’s blog here.

Schneier’s excellent book, Beyond Fear: Thinking Sensibly about Security in an Uncertain World, is required reading for any serious discussion about national security.  Schneier will be a panelist at Cato’s conference on national security on January 12th and 13th.  Information about the conference is available here.  This conference is part of Cato’s three-year initiative on issues relating to civil liberties and counterterrorism.

Emoluments! Get Yer Red Hot Emoluments Here!

A few weeks ago, while attending the Federalist Society’s annual lawyers convention, I got to chatting with UCLA law professor (and former member of the Cato Supreme Court Review editorial board) Eugene Volokh about something that a commenter to his well-known Volokh Conspiracy blog had queried: might Hillary Clinton, then just-announced as “on track” to become the next secretary of state, be constitutionally disqualified from that job?  I quickly turned to Article I, section 6, clause 2 of my handy Cato pocket Constitution (I carry one in every suit jacket and can attest that they make great stocking-stuffers) to look at the source of the problem: the Emoluments Clause.  Nothing against her in particular but indeed, it seemed that Sen. Clinton’s appointment — or that of any member of Congress whose term coincides with a cabinet pay raise — would violate the clear constitutional text.

I won’t rehash the arguments here, especially because both Eugene and I (and many others, including   venerable Supreme-Court-justice-in-waiting-of-Obama’s-first-male-appointment Laurence Tribe) blogged about it.

I thought that would be the end of it, but they keep pulling me back in.  Today, for example, I have an elaborated version of my earlier blog post in the American Spectator.  And tomorrow I’ll be appearing at a Judicial Watch forum discussing the issue along with John O’Connor, author of “The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution.”  (The panel is at the National Press Club, 529 14th St. NW in Washington, runs 1:30–3:00pm, and is open to the public.)

Interestingly, though Congress last week passed a “Saxbe Fix” for Sen. Clinton, we now have another emoluments problem, with Sen. Ken Salazar (D-CO), whom President-elect Obama has just nominated to be his Interior Secretary.

Leaving aside the constitutional issue, that makes four senatorial vacancies (and two gubernatorial vacancies) created by the victory of the Obama-Biden ticket, including, of course, the Rod Blagojevich mess in Illinois.  That has to be some sort of record, but I fear it’s the only way the incoming administration will reduce the size of government (and only temporarily at that).

Blowing the Whistle on “Stellar Wind”

Newsweek has a very interesting story on Thomas M. Tamm, the former Justice Department lawyer who was a source for New York Times reporters Eric Lichtblau and James Risen, who broke the warrantless wiretapping story three years ago yesterday.

The dimension of the story most interesting to me is the failure of congressional oversight to perform its role. Uneasy with what his Justice Department colleagues called ‘the program’ and assumed to be illegal, Tamm had contacted a friend of his who worked for the Senate Judiciary Committee. But Sandra Wilkinson “shut down their conversation.”

Among derelictions of duty, this one stands out. It is the job of the legislative branch to oversee the executive. Sandra Wilkinson, her Judiciary Committee colleagues, and her boss (my cursory checking hasn’t revealed who that was) failed to pursue allegations of illegality in the Justice Department. They will live out their lives with the quiet infamy of gutlessness.

Thankfully, we have a watchdog press and a protective First Amendment. Otherwise, ‘the program’ might even now be metastisizing into a greater threat to our liberties. As it is, the rule of law in the United States has taken a hit, the Congress sickeningly ratified the illegal wiretapping program, and Americans have gotten a refresher course on why not to trust the government of the country they love.

Tis Better to Be Regulated by One Gorilla than by Fifty Monkeys

When Congress lawfully exercises its constitutional powers to regulate a particular aspect of interstate commerce, states cannot also regulate in that area.  This anodyne principle, arising from the Constitution’s Supremacy Clause, is known as preemption.  Today, in its last public action of 2008 and its first 5-4 decision of the term, the Supreme Court violated that principle in a case involving cigarette labeling, Altria v. Good.  The Court erroneously determined that the Federal Cigarette Labeling and Advertising Act does not preempt a suit for fraudulent labeling under state law. 

While the Act expressly covers labeling and advertising “with respect to any relationship between smoking and health,” Justice Stevens’s opinion somehow finds that it does not cover smoking- and health-related suits predicated on the general duty not to deceive.  (The Court was not asked to address, and did not address, the threshold question of whether the Act infringes on the free speech rights of advertisers.) 

As Justice Thomas points out in dissent, the majority has created an unworkable rule that depends on how one frames “the legal duty that is the predicate of the common-law damages action” rather than the text of the federal statute at issue.  Thus, not only will cigarette manufacturers who dutifully comply with federal law now face countless suits under countless state laws, but their fates in those suits will hinge on the creativity of counsel and the gullibility of judges.  And of course, this type of reasoning can easily be extended to circumvent preemption in other regulatory fields, including this term’s eagerly awaited FDA case, Wyeth v. Levine.

Bill of Rights Day

Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.

Let’s consider each amendment in turn.

The First Amendment says that Congress “shall make no law … abridging the freedom of speech.” Government officials, however, insist that they can make it a crime to mention the name of a political candidate in an ad in the weeks preceding an election.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is doing so well that we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can storm into homes in the middle of the night after giving residents a few seconds to answer their “knock” on the door.

The Fifth Amendment says that private property shall not be taken “for a public use without just compensation.” Government officials, however, insist that they can take away our property and give it to others who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial. That is why 95% of the criminal cases never go to trial. The handful of cases that do go to trial are the ones you see on television — Michael Jackson and Scott Peterson, etc.

The Seventh Amendment says that jury trials are guaranteed even in petty civil cases where the controversy exceeds “twenty dollars.” Government officials, however, insist that they can impose draconian fines against people without jury trials. (See “Seventh Amendment Right to Jury Trial in Nonarticle III Proceedings: A Study in Dysfunctional Constitutional Theory,” 4 William and Mary Bill of Rights Journal 407 (1995)).

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are to be reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers are reserved to the states, or to the people.

It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control.  The Framers themselves would often refer to written constitutions as mere ”parchment barriers” or what we would describe as ”paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all

Another important point to remember is that while we ought to be alarmed by the various ways in which the government is attempting to go under, over,  and around our Bill of Rights, the battle will never be ”won.” The price of liberty is eternal vigilance. To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than three million copies of our “Pocket Constitution.” At this time of year, it’ll make a good stocking stuffer. Each year we send a bunch of complimentary copies to the White House, Congress, and the Supreme Court so you won’t have to.

Finally, to keep perspective, we should also take note of the many positive developments we’ve experienced in America over the years. And for some positive overall trends, go here.