Topic: Law and Civil Liberties

REAL ID News and Views

An interesting report says that at least one member of the Carter-Baker Commission would not have signed on to its recommendation to use REAL ID as a voter ID card had she known more about it.

Meanwhile, the Boston Globe editorializes against REAL ID, calling it “unrealistic.”

Greater safety is imperative. But given its flaws, the Real ID law should be scrapped. The country needs to invest more thought, time, debate, and money into how best to upgrade driver’s licenses.

The State Department’s Misguided Money-Laundering Wish List

A couple of decades ago, there were no laws against money laundering. Instead, governments fought crime by…well…fighting crime. Then politicians came up with the idea of making it illegal to use the proceeds of crime. This was not necessarily a bad idea. After all, crime theoretically will be reduced by polices that either increase the expected punishment or lower the expected rewards. Unfortunately, anti-money laundering laws have been an expensive failure. They costs billions of dollars yet there is no peer-reviewed literature showing that they have any impact on crime. Heck, they don’t even stop crooks from laundering funds. Yet the myopic bureaucrats at the State Department publish an annual report hectoring other nations to make their anti-money laundering laws more intrusive and burdensome. Richard Rahn’s Washington Times op-ed reviews some of the sillier suggestions:

This month, the State Department has set a new record by managing to insult the citizens of 123 different lands at one time in the “International Narcotics Control Strategy Report: Volume II, Money Laundering and Financial Crimes.” The 450-page report discusses what other countries are doing to reduce money laundering and financial crimes, which is fine. But then the authors go on gratuitously lecturing each of the countries by name about how they could do things “better.” To understand the total hypocrisy of the State Department nags, it is important to remember that more money laundering goes on in the United States than anywhere else, and that the U.S. is the world’s biggest market for illegal drugs. The Report…is filled with endless demands that other countries do a better job enforcing their laws, pass more laws, sign more international treaties and engage in some practices that would be illegal and unconstitutional in the U.S. Many of the demands would not meet a reasonable cost-benefit test… Some examples: The Belgians “should strengthen the adherence to reporting requirements by some nonfinancial entities, such as lawyers and notaries,” so says State, while completely ignoring the importance of lawyer client confidentiality. …To the Germans they say, “Amend legislation to waive the asset-freezing restrictions in the EU Clearinghouse for financial crime and terrorism financing, so that the freezing process does not require a criminal investigation.” Perhaps, the folks at State Department forgot there are certain historical reasons why the Germans now insist on strong legal protections against a potentially abusive state. The Greeks (and others) are told, “Abolish company-issued bearer shares, so that all bearer shares are legally prohibited.” Maybe the State Department gurus were unaware that bearer shares are perfectly legal in some states in the U.S., such as Nevada, and can serve a sound economic and personal privacy purpose. The authors say the government of Dominica “should eliminate its program of economic citizenship.” But then again, maybe they were unaware that many, if not most, countries allow permanent residency and/or citizenship (including the U.S.) to noncitizens who invest a certain amount in their adopted homeland. …Singapore is told that it “should add tax and fiscal offenses to its schedule of serious offenses.” Perhaps again, it did not occur to the folks in State that the highly educated and prosperous citizens of Singapore are quite capable of figuring out for themselves which laws ought to be “serious offenses.”

Reefer Madness Again

Cato senior fellow Randy Barnett writes in Saturday’s Wall Street Journal about the latest court decision on medical marijuana. After the Supreme Court ruled in 2005 that the application of the Controlled Substances Act to personal medical use of marijuana did not exceed the federal government’s constitutional authority, Angel Raich went back to court to argue that the ban violated her fundamental right to preserve her life. Alas, the Ninth Circuit Court of Appeals rejected that claim, too.

But as Barnett notes, the court did seem unhappy with the decision it was forced to reach:

For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last 10 years 11 states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Pity a panel of judges forced to tell that to a suffering plaintiff.

Property Rights at the Supreme Court, Again

It’s being overshadowed by the Bong Hits 4 Jesus case, but there’s an important property rights case before the Supreme Court today. Timothy Sandefur, author of Cornerstone of Liberty: Property Rights in 21st-Century America, writes about the case in Legal Times today.

The case involves a dispute that arose when Harvey Frank Robbins bought some land in Wyoming. The Bureau of Land Management claimed to have an easement on the land, but that wasn’t recorded on the deed. The government demanded that Robbins agree to the easement, and he resisted. Government agents promised him “a hardball education,” and they delivered – harassment, citations for minor offenses, belligerent visits, and criminal charges for interfering with government agents, charges of which he was acquitted after 30 minutes of jury deliberation. Sandefur takes the story from there:

After enduring years of such treatment, Robbins sued, arguing, among other things, that the BLM agents had violated his Fifth Amendment right to exclude others from his property. The trial court and the U.S. Court of Appeals for the 10th Circuit agreed, but the government asked the Supreme Court to reverse in Wilkie v. Robbins. “No court,” said Solicitor General Paul Clement in his brief, has “ever recognized a constitutional right against retaliation … in the context of property rights.”

This astonishing argument is potentially far more dangerous to the rights of property owners than the notorious Kelo v. New London decision two years ago, which held that government can use eminent domain to transfer property from one private owner to another whenever politicians think doing so would be in the public interest.

If the Court rules against Robbins, home and business owners would find it much harder to resist when the government demands their property.

Harvard Law professor Laurence Tribe argued the case for Robbins, with the Justice Department defending the BLM. Watch for news stories later today.

Confidentiality

Washington University School of Law professor Neil Richards and George Washington University Law School professor Daniel Solove have an important new law review article out.  Privacy’s Other Path: Recovering the Law of Confidentiality is a useful reminder of a dimension of privacy apart from the privacy torts so famously inspired by Warren and Brandeis in their 1890 Harvard Law Review article.

Confidentiality is the idea that you can share information subject to restrictions on further disclosure and use.  There are often implicit understandings about how shared or mutually created information should be treated.  It’s an important point that’s been conveniently forgotten in government arguments for “data retention,” for example.  Confidentiality in the financial services sphere has been eviscerated by the Bank Secrecy Act and the Supreme Court cases that followed it, as well as Smith v. Maryland in the telecommunications context.

Richards and Solove’s work has its awkward turns - they characterize continental Europe’s focus on dignity and America’s focus on liberty as highly individualistic, while suggesting that confidentiality is ”based on the protection of relationships.”  If these characterizations are relevant at all, confidentiality can be seen just as much as a protection of individuals, the difference being that confidentiality is rooted more deeply in contract.  Small matter, though. 

Overall a good work, and an important reminder.

(HT: Schneier)

Cock-fighting and Freedom

It’s not often that you can point to a stirring article about American liberty by a Weekly Standard editor. But Chris Caldwell’s piece in the Financial Times on cock-fighting is a fine read. Yes, cock-fighting. Presidential candidate Bill Richardson doesn’t want the legality of cock-fighting in New Mexico to burden his candidacy as he travels the length and breadth of this great land. So rather than defend New Mexico as the last bastion of American freedom, he chose to sign a law banning it to help his campaign.

Caldwell notes sadly that even the defenders of the practice hardly mentioned liberty. Instead, they mentioned the economic benefits of tourism and the alleged anti-Hispanic bias of the drive to ban a sport popular with Hispanics. The better argument, he thought, would have been liberty: some people want to attend cock-fights, and Americans have been doing so for centuries, so why should “reformers” be able to take a small pleasure away from others? Caldwell deplores the decline of the general presumption of liberty:

It used to be, under the US system, that one could do anything that was not expressly forbidden. Now one is forbidden to do anything one cannot make an explicit case for. The burden of proof has shifted.

It’s especially sad that Bill Richardson, who is not so bad on fiscal issues and is a supporter of medical marijuana, felt that he had to take people’s freedom away for his own political gain.