Topic: Law and Civil Liberties

A Seam Opens …

An oft-repeated scene in the Washington, D.C. kabuki dance recently began with the release of former CIA director George Tenet’s memoir At the Center of the Storm: My Years at the CIA.

I don’t find it particularly interesting to watch a mighty ego defend his honor — mighty egos in the U.S. government are as common as pigeons in the park. (It has to be that way, doesn’t it? Only an inflated ego thinks it can run a government as overlarge as ours.) But I’m pleased by the healthy airing of differences the book has spawned.

This morning in the Washington Post, Richard Perle takes after Tenet about factual inaccuracies in the book. (Puffing pigeons.) The rift starts to reveal some important, but long overlooked, information.

Perle writes, “the CIA failed to make our leaders aware of the rise of Islamist extremism and the immense danger it posed to the United States.” An example I would offer is the presence of Nawaf al-Hazmi and Khalid al-Mihdhar inside the United States — terrorists linked to the USS Cole bombing. Of al-Mihdar, the 9/11 Commission reported, “No one was looking for him.” The story is recounted in brief in my Cato Policy Analysis (with Jeff Jonas) Effective Counterterrorism and the Limited Role of Predictive Data Mining.

A conclusion of that paper: “In the days and months before 9/11, new laws and technologies like predictive data mining were not necessary to connect the dots. What was needed to reveal the remaining 9/11 conspirators was better communication, collaboration, a heightened focus on the two known terrorists, and traditional investigative processes.”

As U.S. government officials turn against each other, they help reveal that their agreement to turn against us — in the USA-PATRIOT Act, domestic spying, and myriad other laws and programs — was a salve for those wounded egos. They didn’t want to admit that they outright missed the 9/11 attacks.

Structured Analysis at the WH Privacy Board

The White House’s Privacy and Civil Liberties Oversight Board recently came out with its annual report, which details its organization, operations, and recent work.

I was pleased to see that it has adopted a structured approach to analyzing privacy and related issues (see pages 24-25). Its approach is quite similar to the one adopted in the Framework document created by the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee. (Well, I’ll put a finer point on it: the Privacy Board report acknowledges and thanks me and the committee. It’s very nice to be singled out, of course, but the Framework document was the product of many minds, eyes, and hands from the DHS Privacy Committee.)

This doesn’t mean the White House Privacy Board has gotten everything right, of course. I have no doubt that they could have done better. But it is very important progress to see a group like this committing to an organized, structured thought process. Doing so facilitates the discussions that lead to improved, better understood, and more widely agreeable outcomes.

WAMU Wags Its Finger, Part I

I listen to National Public Radio in the morning.  The frequent left-wing bias can be grating, but that’s nothing compared to the inaccuracies and condescension of those annoying NPR membership drives.

My local NPR station is WAMU, which broadcasts from American University in Washington, DC.  WAMU is holding one of their membership drives this week. In the past, I’ve heard NPR and WAMU personalities lecture listeners that we are “free riders” unless we cut them a check.  The only problem with that argument is that WAMU receives about 7 percent of its revenue from the federal government, which means that every WAMU listener already contributes to the station – albeit involuntarily.  Calling any of WAMU’s listeners “free riders,” therefore, is the sort of inaccuracy of which a journalist should be ashamed.

This came to mind at about 8am today when I heard a WAMU reporter reprove, “It is important for you to become a participatory member.” As if I weren’t already.

I value WAMU.  It’s just so darned informative.  But I’ve decided that I’m not writing them any checks until they forswear all involuntary contributions or Congress weans them off of the same

Until then, I’ll try to blog every inaccurate or condescending ploy that I hear WAMU use to belittle my existing contributions.  I encourage my NPR-listening colleagues to do the same.  If we blog enough of them, maybe we can wrap them up and send them to WAMU as a very special contribution. 

Though I wouldn’t count on getting the tote bag.

DHS Privacy Committee Declines to Endorse REAL ID

The Department of Homeland Security’s Data Privacy and Integrity Advisory Committee is filing comments on the REAL ID regulations. Comments close today (Tuesday). Instructions for commenting can be found here, and apparently, due to difficulties with the automatic comment system and with receiving faxes, DHS has opened an email address for receiving comments: oscomments [at] dhs [dot] gov (subject: DHS-2006-0030) . Emails must have “DHS-2006-0030” in the subject line.

The Committee took care to offer constructive ideas, but the most important takeaway is summarized by Ryan Singel at Threat Level:

The Department of Homeland Security’s outside privacy advisors explicitly refused to bless proposed federal rules to standardize states’ driver’s licenses Monday, saying the Department’s proposed rules for standardized driver’s licenses – known as Real IDs – do not adequately address concerns about privacy, price, information security, redress, “mission creep”, and national security protections.”Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate,” the committee wrote in the introduction to their comments for the rulemaking record.

I’ll be testifying on REAL ID today before the Senate Judiciary Committee.

Bush Says He’ll Veto Hate Crimes Bill

I have an article over at NRO that critiques the hate crimes legislation pending in the Congress.  Interestingly, Bush took a strong stand against hate crimes legislation when he was the governor of Texas.  He refused to sign the James Byrd Hate Crimes Act, saying “all crimes are hate crimes.”

Just this morning, the White House has announced its intention to veto the hate crimes measure.  This is a most welcome development as the bill is an affront to the constitutional principle of federalism.

REAL ID Comment Campaign

The comment period on Department of Homeland Security regulations implementing the REAL ID Act ends early next week. A broad coalition of groups has put together a Web page urging people to submit their comments. The page has instructions for commenting, a quite helpful thing given how arcane the regulatory process is.

Feel free to comment – good, bad, or indifferent – on the regs. My views are known, but the Department of Homeland Security doesn’t know yours.

Busy Courthouses, Few Trials

From NYT columnist Adam Liptak:

Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions. …

Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains. …

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”

Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself. …

I was on jury duty last week, in a state criminal court in Manhattan. During the orientation on Wednesday, a court officer, with mixed pride and hyperbole, said his was the busiest courthouse in America.

I never saw so much as the inside of a courtroom. After a couple of days of milling around in an assembly room with more than 100 other potential jurors, the State of New York thanked us for our service and sent us home.

For more about how plea bargaining tactics tax the right to jury trial, go here (pdf).

To listen to a talk that Judge Young gave at Cato, go here.