Topic: Law and Civil Liberties

When the Police ‘Take the Fifth’

Local incident here in the DC suburb of Prince George’s County:  The police are trying to solve a murder, but they can’t get useful information from certain key witnesses–even though those witnesses are themselves law enforcement officers. 

It sounds quite odd until you hear the additional details.  The murder victim was suspected of killing a police officer in the line of duty.  Seems like police vigilantism.  Marc Fisher has a good column about the death of Ron White here.  And the Washington Post has an editorial here.

This incident provides me with a rare opportunity to criticize the Supreme Court for carrying a provision of the Bill of Rights too far.  To briefly digress, never accept the blithe assertion that “sometimes the courts mistakenly expand the government’s powers and sometimes the courts mistakenly expand the constitutional rights of individuals.”  That’s true, but very misleading because it sounds as if it all evens out in the end.  Not true.

In Garrity v. New Jersey, the Supreme Court said police officers could “take the Fifth” with respect to internal investigations into police misconduct.  Now police officers, like anyone else, can “take the Fifth” when threatened with arrest and prosecution.  However, they should not be able to take the Fifth when they are threatened with the loss of their job.  Or, to be more precise, they can invoke the Fifth if they choose, but the police chief can then respond by demanding that they turn in their badges.  The dissenting opinion in Garrity contains this quote from one Judge Jerome Frank:

 “ ‘Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but … they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them.’ Christal v. Police Commission of San Francisco.

Oliver Wendell Holmes once said, men may have the right to remain silent, but they do not have the constitutional right to be police officers.  Holmes was right and Garrity was wrong. 

Returning now to the apparent murder of Ron White in his jail cell, the silence of the correctional officers is simply inexcusable.  County officials should give these officers an ultimatum: You have 24 hours to come forward and tell us what you know.  Anyone who remains silent will be discharged.  And, note well, the criminal investigation will continue in any event.  The local police union will object, but let it.  Garrity was decided by a narrow, 5-4 vote.  It was incorrectly decided and ought to be overturned.  This case could be the perfect vehicle for accomplishing just that.

Under current law, citizens can lose their jobs and risk jail for refusing to cooperate with private investigators.  It is perverse for the law to permit a double standard for state employees–especially the police.  One would think that the law would hold the police to a higher standard here.

Post Editorial on FISA

Disturbed that a public outcry over retroactive immunity for telecommunications companies might snarl the FISA “compromise” in the Senate, this Washington Post editorial calls the debate: “A particularly disturbing example of the Internet tail wagging the legislative dog.”

Others might call it democracy.

The editorial goes on:

No one can claim with certainty that his or her communications were monitored. The likelihood of prevailing – or even getting very far – with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries.

Leaving aside the question of whether uncertainty about whether someone is listening to your calls isn’t itself a harm sufficient for standing, you have to wonder why the Post thinks that dislodging information about an illegal wiretapping programs is nefarious.

It goes on to discuss the telecoms:

Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome.

Preventing their cooperation in future illegal activity at the behest the President seems like a useful outcome to me.

Time to Skedaddle?

ABC News reports that the Bush administration may be on the verge of closing Guantanamo.  This is because the recent Boumediene ruling will be bringing judicial scrutiny to the facility.  In other words, from the standpoint of Bush administration lawyers, if the law pertaining to habeas corpus is coming to Guantanamo Bay, it may be time to get out of Dodge!  Quick, move the prisoners to places where the judiciary can’t find them.  This might be called the “executive flight privilege” because when a person (who is not in the employment of the state) tries to evade the course of justice by leaving town to avoid arrest or the institution or continuance of legal proceedings, prosecutors say it is unlawful flight.

This turn of events was foreseeable.  Too much emphasis on Guantanamo (i.e., who has sovereignty?  The U.S. or Cuba?) would perhaps inevitably lead to more cat and mouse games between the executive and the judiciary.  If the courts would focus more on the jailor and less on the jail, the cat and mouse stuff might finally stop.    

Repeat after Me: FISA Doesn’t Expire

One of the hazards of running a grassroots campaign is that sometimes those grassroots supporters raise a ruckus if you don’t live up to your primary campaign promises. The New York Times reports that 7000 of Obama’s supporters (the number is up to 13,000 as I write this) have created a group on Obama’s own campaign website to pressure him to reject the “compromise” FISA legislation that the House passed last month. Obama declared his opposition to any FISA legislation that included retroactive immunity back in February, and many of Obama’s liberal supporters feel betrayed that while he is still nominally against the immunity provision, he has signaled a willingness to support the overall legislation whether or not the immunity provision is stripped out.

Not surprisingly, the Obama campaign’s response is both lame and misleading:

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”

I feel like a broken record, but FISA, which was enacted in 1978 and updated in 2001, doesn’t expire. It will remain the law of the land indefinitely, whether or not Congress passes new legislation this month. The Protect America Act, which was passed last August, has already expired – back in March. As I pointed out at the time, the expiration of the PAA simply returned us to the permissive surveillance regime that Congress enacted with the Patriot Act in 2001. That regime isn’t perfect, to be sure, but it leaves our intelligence community with plenty of tools to spy on terrorists.

What Mr. Craig is most likely referring to is the fact that the first surveillance “authorizations” under the PAA will begin expiring in August. These “authorizations” are good for a year, so any authorizations approved in August 2007 will expire in August 2008. But that simply means that intelligence officials will have to apply for a FISA order under the still fairly permissive Patriot Act rules. Those rules include a lower legal threshold than exists under ordinary criminal wiretaps, and an “emergency” provision allowing wiretapping to begin immediately and authorization to be sought after the fact. The net result will be a modest increase in the NSA’s paperwork burden, but there’s no reason to think any reasonable surveillance activities will cease. (Some indiscriminate vacuum-cleaner surveillance may have to be stopped, but that wouldn’t be a bad thing)

Indeed, Pres. Bush himself praised the changes Congress made to FISA in the wake of the September 11 attacks, noting that the Patriot Act’s FISA amendments “will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones” and makes the intelligences community “able to better meet the technological challenges posed by this proliferation of communications technology.” That’s the legal regime that will apply if Congress declines to enact a FISA bill this year. There hasn’t been a major terrorist attack on American soil in the six and a half years that legal regime has been in place. Surely it will serve us well enough for another six and a half month until Obama himself is likely to be sitting in the Oval Office and can negotiate a FISA reform more consistent with his supposed liberal principles.

Theft by Gavel

A judge has decided to “correct” Leona Helmsley’s disposition of assets.

From the New York Times:

Judge Renee R. Roth of Surrogate’s Court in Manhattan will also play a role. She has already demonstrated a willingness to be flexible, cutting the size of Trouble’s trust fund to $2 million, from the $12 million prescribed in Mrs. Helmsley’s will, and ordering that the difference be added to the pending charitable trust.

Judge Roth also agreed to a settlement between the trustees and two of Mrs. Helmsley’s grandchildren who were explicitly left out of her will. The agreement gave those grandchildren $6 million each.

It’s easy to let Helmsley’s interest in dogs distract us from what Judge Roth has done here. But consider this: If this judicial interference can happen to someone who can afford the best law firm in the USA to arrange her estate, what’s to stop some state official from messing with your property? I had to endure a semester of “Trusts and Estates” during law school and I’m sorry to report that what Judge Roth has done is fairly common. Wills can be “adjusted” according to the “flexibility” of the executor and the judge.