Topic: Law and Civil Liberties

Senator Susan Collins Supports National ID

I wrote here previously about Senator Susan Collins’ odd move to protect the REAL ID Act from a nationwide rebellion that began in her own state of Maine.  She had introduced a bill to extend the deadline for implementation of the REAL ID Act by two years.

Followers of REAL ID know that delaying implementation helps a national ID go forward by giving the companies and organizations that sustain themselves on these kinds of projects time to shake the federal money tree and get this $11 billion surveillance mandate funded.

It is now clear that the bill is intended to provide a key piece of support to proponents of a national ID, as shown by a press release on her Web site this morning touting a statement from the National Governors Association.  Collins has gone native, attending more carefully to the interests of national political organizations than to the interests of her constituents in Maine.

Representative Tom Allen (D-ME) has introduced legislation to repeal REAL ID and restore the identification provisions in the 9/11-Commission inspired Intelligence Reform and Terrorism Prevention Act.  Unlike Collins, he seems to be paying attention to his home state.  Politicians’ stances on REAL ID have affected their electability in the past.

Senator Collins should be well aware that delay can’t make the REAL ID Act work.  The real problem is the law itself, and it should be repealed.

Update: A DHS press release issued today announces that it will grant states an extension of the compliance deadline, and it will allocate funds from the Homeland Security Grant Program.  The money tree has already begun shaking.  Secretary Chertoff is quoted saying, “We are also pleased to have been able to work with Senator Susan Collins, and I believe that the proposed regulations reflect her approach.” 

FBI Scandal

The FBI looked the other way when it knew that several people were being framed for a crime they did not commit.  Some might say, “Well, we all know there were certain abuses when Hoover was running the bureau in the ol’ days.”  But behold the argument advanced by the attorney representing the United States government:

Yesterday, a Justice Department lawyer argued that the FBI had no duty to share internal documents with state prosecutors and insisted the state was responsible for convicting the men in the slaying of Edward “Teddy” Deegan in Chelsea.

“The United States is not liable to plaintiffs because they were convicted as a result of a state prosecution,” Bridget Bailey Lipscomb said. “The FBI did not initiate this prosecution, and there is no duty of the FBI to submit to state or local governments any of its internal files.”

The government is not denying the fact that it knew what was happening. Nor is it saying the plaintiffs were wronged but are asking for too much money.  The government is instead arguing that it had no duty to come forward. 

At a minimum, one might ask what the FBI means when it says that one of its “core values” is “Accountability [by] accepting responsibility for its actions and decisions and the consequences of its actions and decisions.”  Maybe the director means that his agents will not arrest people who bring lawsuits against the bureau alleging illegal conduct.  Maybe he means something else. 

At worst, criminal laws were broken here.  An ordinary citizen can go to jail for suborning perjury.  It is also a crime to stand by and let a crime take place without notifying the authorities (misprision of felony).  The feds evidently believe they are not bound by these rules.  Pretty shocking.  Even if the judge rules against the Department of Justice, we should not forget what it argued in this case.

To listen to a Cato event on the FBI’s informer scandal, go here.     

Would You Like Fries with that Arrogance?

This isn’t really my beat, but it pushed my buttons (and not in a good way) all the same. Prince Charles, first in line for the British throne, has reportedly called for a ban on McDonald’s.

A known organic food advocate, Prince Charles was touring a diabetes center in Abu Dhabi when he made what McDonald’s assumes was an “off the cuff” remark about how banning McDonald’s was the “key” to improving diets.

This offends me on so many levels. First, as a libertarian I object to anyone telling others what they can put in their mouths. Second, the fact that the remarks come from someone whose power is derived solely through heredity (and, to my knowledge, has no qualifications in nutrition or public health) annoys me even more.

But mainly I am offended by the gall of a Brit casting aspersions on the quality of any cuisine.

Inquiring Minds Want to Know

The Hill reports on a senator’s curiosity about 527 groups:

“I promised a group of people that we would do some hearings on it,” said Feinstein. “We’ll take a look at the 527, what it is today and where it appears to be going. I’d like to know exactly what 527s are doing. My exposure to them is necessarily limited, as it is for most members. It’s when you have a 527 weighing in against you that you want to know where this money is coming from.” (emphasis added)

Not that Senator Feinstein would do anything to harm the people weighing in against her. She is just curious, eager to learn. 

Who You Gonna Believe, Me or Your Lying Eyes?

Here’s Representative Barbara Cubin’s (R-WY) letter to state legislators regarding the REAL ID Act, as reported in the Casper Star-Tribune:  “The new driver’s licenses will allow state and federal law enforcement to check the authenticity of a license, but will not grant access to state databases of private information.”

Now here’s section 202(d) of the REAL ID Act:

To meet the requirements of this section, a State shall adopt the following practices in the issuance of drivers’ licenses and identification cards: …

(12) Provide electronic access to all other States to information contained in the motor vehicle database of the State. 

(13) Maintain a State motor vehicle database that contains, at a minimum–

(A) all data fields printed on drivers’ licenses and identification cards issued by the State; and

(B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.

Who you gonna believe?

Government Identity Programs in Collapse?

Government Computer News has had a number of articles recently about the problems besieging the Transportation Worker Identity Card (or TWIC), one of a number of government identification systems nominally responding to the post-9/11 threat environment.  It should be no surprise to government watchers that a service provider for TWIC, viewed by many as unqualified, happens to be in the district of the former Chairman of the House Appropriations Committee’s Homeland Security Subcommittee.

The REAL ID Act is a bigger government identity control project, by far, which attempts to force states to convert their drivers’ licenses into a national ID card.  Regulations implementing REAL ID are widely expected to be released this week.  

Even while the architects of the surveillance state gather to talk about implementation, the Washington Post has an article out today that is probably best taken as the first post mortem on REAL ID

The headline (“As Bush’s ID Plan Was Delayed, Coalition Formed Against It”) wrongly attributes REAL ID to the Bush Administration, which was not a proponent of REAL ID, though the President did accept it as part of a military spending bill.  The article correctly attributes responsibility to Rep. James Sensenbrenner (R-WI), the former Chairman of the House Judiciary Committee.

Though the Bush Administration has room to distance itself from this colossal unfunded national surveillance mandate, a prominent member of the Administration appears to have consumed the REAL ID Koolaid - in quantity.

“If we don’t get it done now, someone’s going to be sitting around in three or four years explaining to the next 9/11 commission why we didn’t do it,” Homeland Security Secretary Michael Chertoff told the Senate’s Homeland Security Committee on Feb. 13.

Secretary Chertoff’s shameless terror-pandering is matched only by his ignorance of identification’s utility as a security tool.  People who understand identification know that it does not provide security against committed threats.

It’s unfortunate that government works by trial and error, but this trial may soon show that a national ID is error.

A Pox on Unanimity

In Slate, Doug Kmiec criticizes the Court’s decision in Philip Morris v. Williams for its lack of unanimity and argues, echoing the fashionable arguments of Chief Justice Roberts, that unamimity helps promote “clear rules” because judges must “work out their disagreements before they write their opinions.”

I’ve previously suggested (here) that this is backwards. Unanimous decisions are, on balance, likely to be less clear than 5-4 decisions: 

It’s not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right. Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness. The more amorphous and open-ended the statute — the more the statute defers tough questions — the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too: Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

In a very good post, Ilya Somin makes a similar point, writing in response to Kmiec, here:

Many of the complex balancing tests and complicated exceptions to rules that legal commentators like to make fun of in Supreme Court opinions are the result of the need to “count to five” — corral the five votes needed to create a binding Supreme Court decisons. Counting to nine is usually likely to require more compromise — and thus more complicated balancing tests and exceptions — than counting to five.