Topic: Law and Civil Liberties

Harvard Lawyers Soon to Know Even Less

I’m fond of my law school (which wasn’t Harvard) and proud of having gotten a legal education, but I am keenly aware of what they didn’t tell me in school. My training was noticably light on constitutional doctrines like separation of powers and federalism — protections of liberty as important as the Bill of Rights. (I had to go and learn them myself. Got a little help from an outfit called the Cato Institute and papers like this one.)

Indeed, I recall a college pre-law class where I was taught the “swirl cake” theory of federalism. ”Sure, there are layers of government, but they mix and overlap in mysterious ways.” Utter claptrap. ”Swirl cake” federalism obscures the workings of government from the people, allows politicians to avoid accountability, and fertilizes the growth of over-large government at every level.

Now comes news (via the Volokh Conspiracy) that Harvard is going to “overhaul” the education first-year law students get. Rather than basics like contracts, torts, property, civil procedure, and criminal law, they’ll learn such things as policy and international law.

In other words, Harvard-trained lawyers will know more about politics and less about law. A step backward for the legal profession and probably for many Harvard lawyers themselves. 

As a law review editor-in-chief, I was aware that many top journals had wandered away from doctrinal work that actually advances law. Maybe the whole legal academy is following suit.

The Weaknesses of Watch-Listing

“Watch-listing” — the practice of putting bad people’s names on a list and treating them differently at places like airports — is fraught with difficulty. 

As to sophisticated threats, it’s a Maginot line. Easy to evade, it provides no protection against people who haven’t yet done anything wrong, who haven’t come to the attention of security officials, or who have adopted an alias. Terrorist planners are nothing more than inconvenienced by having to use people with “clean” records.

Paying to inconvenience any such terrorists are (taxpayers, of course, and) all the people wrongly treated as suspects because they have the same or similar names as listed people. 

On its website, CBS News is previewing its upcoming 60 Minutes story on watch-listing, and they’ve assembled a large group of Robert Johnsons to attest to their experience with watch-listing. They share the same name as a Robert Johnson that someone deemed appropriate to put on a list.

Watch-listing has a deeper flaw, though.  It does not fit with our system of law enforcement.

In the U.S., people who have done something wrong are supposed to be arrested, taken to court and charged, then permitted to contest the accusation. If they are found guilty, they pay money or serve time in jail. 

Watch-listing follows no similarly familiar pattern. Law enforcement or national security personnel place a person on a list and then, wherever that list is used, treat the person (and other people with the same name) differently, stopping them, interrogating them, searching them, or whatever the case may be. This unilateral process is alien to our legal system.

Rather than watch-listing, people who are genuinely suspected of being criminals or terrorists should be sought, captured, charged, tried, and, if convicted, sentenced.  Watch-listing allows law enforcement to be very active and intrusive without actually doing what it takes to protect against crime and terrorist acts.  In Identity Crisis, I wrote that ”watch listing and identification checking [are] like posting a most-wanted list at a post office and then waiting for criminals to come to the post office.”

At the national border, watch-listing must be used — deftly — because we cannot reach wrongdoers worldwide. Those watch-lists allow us to be vigilant against bad people who may arrive on our shores. Domestically, though — in our free country — the practice should end.

Extremism in Defense of Liberty

Michael Cannon, Mike Tanner, and other libertarian health care gurus may appreciate this.  I recently came across an intriguing quote by Founding Father Benjamin Rush, surgeon general of the Continental Army and signer of the Declaration of Independence.  So I did what everyone does these days and went to Wikipedia.  There I learned that:

Rush believed that Americans should enshrine the right to medical freedom in their Constitution, much as the right to freedom of religion is expressly guaranteed in that document.

Rush is reported to have argued that “Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship … to restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of Medical Science. All such laws are un-American and despotic and have no place in a Republic … The Constitution of this Republic should make special privilege for Medical Freedom as well as Religious Freedom.”

(Of course, if you read a little further, you learn that some of his medical theories were not so hot). 

Rush was also a rabid antimilitarist who proposed in 1792 that two captions be painted “over the portals of the Department of War”: “An office for butchering the human species” and “A Widow and Orphan making office”–though that’s an idea that would probably be even less popular today.    

Don’t Embarrass the State

Here are the ”core values” of the Federal Bureau of Investigation, which is a division of the Department of Justice:

• Rigorous obedience to the Constitution of the United States;
• Respect for the dignity of all those we protect;
• Compassion;
• Fairness;
• Uncompromising personal integrity and institutional integrity;
• Accountability by accepting responsibility for our actions and decisions and the consequences of our actions and decisions; and
• Leadership, both personal and professional.

Good stuff. 

So what happens when a man comes forward and claims that the bureau violated his constitutional rights and subjected him to abuse?  Does a friendly FBI lawyer rush into court and say, “We checked this out and we really messed up.  We apologize and we hope you will accept monetary compensation?” 

Not exactly.

In fact, according to a report in today’s New York Times, the legal representatives of the federal government are of the view that even if all of the factual allegations are true, FBI officials are immune from legal liability.  Here is how the Times describes what happened in court:

In sharp questioning, a three-judge panel yesterday challenged arguments by federal officials seeking dismissal of a Pakistani man’s suit charging that because of his religion, race or national origin, he, like others, was held for months after 9/11 in abusive solitary confinement before being cleared of links to terrorism and deported.

In the mahogany and marble splendor of the Second Circuit Court of Appeals in Lower Manhattan, lawyers for former Attorney General John Ashcroft and other government officials argued that the officials were entitled to immunity from the lawsuit filed by the man, Javaid Iqbal, who had been known as “the cable guy” to his Long Island customers before he was swept into a federal detention center in Brooklyn as were hundreds of other Muslim immigrants in the New York area.

From the start of yesterday’s two-hour hearing, one of the judges, Jon O. Newman, showed particular impatience with the narrow legal defenses offered by the defendants in the case, which lawyers for Mr. Iqbal say seeks accountability for what they call serious constitutional violations by the nation’s highest law enforcement officials. It is the first case of its kind to reach the appellate level.

Judge Newman was especially scathing in questioning the lawyer for Dennis Hasty, formerly the warden of the Metropolitan Detention Center, where Mr. Iqbal and 184 others designated by the Federal Bureau of Investigation as “of high interest” were confined in a special unit where a 2003 Justice Department Inspector General’s report found widespread abuse.

Mr. Hasty’s lawyer, Michael L. Martinez, had argued in his brief that even if everything alleged in the lawsuit were true — as the appellate judges must assume at this stage of the litigation — Mr. Iqbal’s treatment “never approached the level of a due process violation.”

“Beatings?” Judge Newman asked. “Exposure to air-conditioning after standing in the rain? Needless strip-searches? Never approached a due process violation? If I thought your client really believed that, I’ve got to tell you, I’d be really troubled.”

Judge Robert D. Sack was equally acerbic in commenting on a defense assertion that the complaint failed to link Mr. Hasty personally to what was going on at the detention center.

“He is the warden,” Judge Sack said. “If he didn’t know what was going on — I’m boggled twice in one argument.”

Read the whole article.

Remember this: The federal government spends trillions every year, but it tells people like Mr. Iqbal to go jump in a lake.  This is our Department of Justice.  And don’t be fooled into thinking that it’s only an “isolated incident.”  Lawyers for the government are constantly seeking to further the “interests” of the government.  And those “interests” are not the same thing as justice.

IMHO, America could use more programming that cuts through the pretensions of officialdom.  Memo to Saturday Night Live: Do a skit where President Bush is giving his State of the Union address.  Here’s the scene: After promising more great-sounding programs, Bush points to the gallery where guys like Mr. Iqbal and Mr. Steven Howards are seated between FBI Director Robert Mueller and Attorney General Alberto Gonzales.  Bush declares that “These citizens have been whining about their rights … but by golly we’re at war!  And while I don’t question their patriotism, they did have the temerity to drag my people into court.  If there’s one thing I can’t stand, it’s complaining.  Mr. Speaker, Honored guests, my message to you tonite is simple: Anyone who disagrees with the policies of my administration is soft on murdering terrorists!  “Remove those guys from this hallowed building,” Bush yells.  Iqbal and Howards are then escorted from the Capitol building to the thundering applause of the Congress.

Would such a skit be too harsh?  Or not harsh enough?

The Extraterritorial Constitution: A Short Reading List

For blog readers who slogged through my brief discussion of the Military Commission Act, I should underscore that the post isn’t designed to take a position, but rather to give a necessarily very incomplete overview of the lay of relevant cases–although I am, as an initial matter, intuitively sympathetic to claims that due process requires an Article III court’s independent, do novo factual determination of citizenship status before alleged alien combatants held in Guantanamo are tried in military commissions.

One reason I hesitate to take a position is because the legal questions are deeply underarticulated in the cases and, frankly, in the Constitution itself.  One of the most under-articulated questions, aside from the scope of “constitutional habeas” and the extent of the suspension power, is where, and to whom, the Constitution–particularly the Bill of Rights–applies. 

Here’s what I’m reading right now as I think about the question.  I welcome suggestions of other articles:

1.  Sarah H. Cleveland, Powers Inherent in Sovereignty:  Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002).  This is a terrifically informative article that surveys (critically) the development of territoriality and citizenship limitations on the Constitution in cases ranging across the Indian Wars, the nineteenth century wars of colonial expansion, and the conflict over Mormonism and polygamy in the Utah Territory.  A great place to get one’s bearings in a sea of very exotic constitutional history.

2.  Gary Lawson, Territorial Government and the Limits of Formalism, 78 Calif. L. Rev. 853 (1990).  Here, Lawson argues, in his typically careful but ambitious fashion, that the proper “formalist vision of a constitutional territorial regime is vastly different from the regime that has been in place for the past two hundred years.”

3.   Gary Lawson & Guy Seidman, The Hobbesian Constitution:  Governing without Authority, 95 Nw. U.L. Rev. 581 (2001).  Here Lawson and Seidman examine the period of military government in California after the Mexican-American war, through the prism of the largely forgotten case (Cross v. Harrison), tracing, along the way, some of the “troubling” consequences of the Court’s disposition of that case “in subsequent legal and political events, most notably the …  Insular Cases,” which loom in the background of the debate over the detainees held in Guantanamo.

“Reprehensible” Is Right

If the facts that gave rise to this lawsuit (reg. req.) are as described in the complaint, then it’s pretty disturbing. Last June, a Colorado man named Steven Howards approached Vice President Cheney in a public place, and told him “I think your policies in Iraq are reprehensible,” or “words to that effect.” A few minutes later, a Secret Service Agent cuffed Howards and had him hauled off to jail. (The charges were later dropped).

There’s not much in the news coverage to suggest that Howards, who was taking his eight-year-old son to piano practice at the time, behaved in a threatening manner, unless one thinks that telling public officials what they don’t want to hear is inherently threatening.

There is quite a bit of evidence, however, that that’s exactly what the Secret Service thinks. Some of it is documented in this study, under the heading “Free Speech Zones.” The agency has evolved from a necessary protective detail for the president to a sort of palace guard with apparently very little regard for those not under its protection. That’s the fault of the agency’s leadership, to be sure, but ultimately the buck stops with the people they answer to.

Bureaucracy and Lost Privacy

In my book Identity Crisis: How Identification is Overused and Misunderstood, I argue that identification is required of us too often by both corporations and government as we go about our business. I also do my best to articulate the reasons why this is bad, and how we can escape it.

With my senses tuned to the overuse of identification, I’m keenly aware of the osmotic process by which institutions soak up information about us, pass it around, and use it in ways we may not prefer.

Here’s an example from real life: I have recently spoken at several conferences dealing with identification, identity, financial risk management, and the like. When the time came to get reimbursement for my travel, one of the conference organizers asked me to give my Social Security Number if I was going to rely on faxed receipts for reimbursement.

The e-mail thread below shows how complex IRS regulations require financial administrators in the corporate world to over-comply, collecting (and possibly filing with the government) information that neither entity needs.

This is bureaucracy in action (both public and private), and it’s the constant drip, drip, drip of privacy going away.

[Names have been changed to protect the guilty.]

*********************

—–Original Message—–

From: katie [at] conference [dot] org

Sent: Fri 9/29/2006 10:19 AM

To: Jim Harper

Subject: W-9 Forms Needed

Hello Jim,

Thank you so much for sending over your receipts.

Since you did not send me actual receipts, I need you to fill out this W-9 form and fax it back ASAP.

Thanks again,

-Katie

Katie Folsom

Conference Specialist

*****************************

Are you sure? This is reimbursement for travel, not income. And even if it were income, I believe the amount in question here would not even require a W-9. (Also, I’m traveling through Sunday without access to a printer or fax. ;-)

Having suffered through my talk, you probably understand that I don’t needlessly share information with the government or with organizations who are going to needlessly share with the government.

If you could politely ask your accounting folks to show where the law or IRS instructions require them to have my SSN to reimburse me for travel, I would appreciate it. (I’m not a tax law expert, just knowledgeable enough to be dangerous/annoying.) If they can’t show that they need this information, they don’t need it.

Thanks! Sorry for being prickly, but it’s my job.

Jim

Jim Harper

Director of Information Policy Studies

The Cato Institute

***************************

—–Original Message—–

From: elizabeth [at] conference [dot] org

Sent: Friday, September 29, 2006 11:32 AM

To: Jim Harper

Cc: Katie [at] conference [dot] org

Subject: Re: Fw: W-9 Forms Needed

Hi Jim,

While I understand your concern regarding needlessly sharing information, IRS regulations specify that a W-9 must be filled out whenever receiving income from a company. Please see the “Purpose of Form” section on the front of the W-9. Your travel reimbursement is technically considered income.

One way around this (to avoid having to fill a W-9 out), however, is to send us all of you Original receipts and get reimbursed on those. Basically, in layman’s terms, the IRS is trying to avoid “double-dipping”. If we reimburse someone for receipt copies, that person can then claim/deduct the originals on their own personal/business taxes. The W-9 form is the IRS’ tracking solution to this.

Please let Katie what you intend to do, so she can be on the lookout for either your W-9 form or your original receipts in the mail (sent with tracking information for your protection). I hope this cleared things up a bit.

Thank you.

Elizabeth

Elizabeth LaFontaine

Senior Accountant

*********************

“Jim Harper”

10/03/2006 06:04 PM

To elizabeth [at] conference [dot] org

cc Katie [at] conference [dot] org

Subject RE: Fw: W-9 Forms Needed

Hi Elizabeth –

Sorry for the delay. I’ve been traveling. Again.

As I understand it (and I have double-checked), W-9s are needed when you are going to file a 1099. If you believe that there is a requirement to file a 1099 on reimbursement of my travel expenses, could you please tell me where that is? Which 1099 would you file? If you think that it’s the 1099-MISC, please note that the threshold amount for filing the 1099-MISC is $600 in income.

And I have strong doubts that this is income. If you were to file a 1099 dealing with reimbursement for travel expenses, the IRS would be looking for it on my 1040, and I have never included travel expenses on a 1040.

Let me apologize for being a stickler about this, but many administrators believe they have to collect SSNs when they do not. It may be that you are over-collecting SSNs and possibly even filing forms you don’t need to.

If you can point me to documents showing that I’m mistaken, I welcome being corrected. But unless you do, I’m pretty sure that you don’t need a W-9 and can issue a check to me.

Thanks!

Jim

Jim Harper

Director of Information Policy Studies

The Cato Institute

************************

Hi Jim,

As I stated in my previous email, you do not need to fill out a W-9 if you do not wish to. Simply send all of your original receipts to Katie so she can process your check. Unfortunately, that is the only way you will be reimbursed. Sorry for any inconvenience, but those are the policies we strictly abide by and they in no way infringe upon any reservations you may have about providing information you don’t want to provide.

Please let Katie know when she can be expecting your receipts in the mail. We will reimburse you $4.55 for Priority mail with Delivery Confirmation if you’d like.

Regards,

Elizabeth

Elizabeth LaFontaine

Senior Accountant