Topic: Law and Civil Liberties

Defending the Constitution

Republican Sen. Arlen Specter expects the Supreme Court to invalidate a law that he voted for:

Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions.

Don’t be surprised if one or two Supreme Court justices respond with something like this: “This is a grave matter and judges are ill-suited to make national security decisions and so I think it proper to defer to the considered judgment of elected representatives of the people in the Congress on this habeas corpus matter.” 

As I point out in this paper, too many people seem to think that the Constitution will somehow automatically check the government when it goes too far. Not so. The Constitution cannot enforce itself. This latest episode in anti-terrorism legislation shows that we have not broken out of a vicious political cycle and that’s a very bad indication of the political and legal trends in America.

Habeas Corpus

Today’s Washington Post has this to say about the detainee bill that is working its way through the Congress:

Some of the fiercest debates focused on whether foreign terrorism suspects should have access to U.S. courts for challenging the legality of their detention, a right known as habeas corpus.

House Republicans blocked Democrats from offering amendments, including one that would have extended the habeas corpus right to detainees.

Cato Institute adjunct scholar Richard Epstein, criticized the proposals to curtail habeas corpus in this statement to the Senate Judiciary Committee a few days ago.

For additional background on the writ of habeas corpus, read this and this.

Bush, McCain, and Prisoner Policy

Today’s Washington Post has an editorial entitled “Rush to Error.” The editorial says that Congress should not be pushed into approving the Bush-McCain accord with respect to the handling of prisoners. The Post is right.

The legal issues can get pretty complicated, but it may be useful to take a few steps back from the nitty-gritty to gain perspective. Last June, the Supreme Court issued a landmark ruling in a case called Hamdan v. Rumsfeld. The Court ruled that President Bush’s plan for trials before military tribunals was unlawful and that Common Article III of the Geneva Convention applied to all prisoners in U.S. custody. Thus, as a result of Hamdan, this is the status quo:

1. There will be no trials before special military tribunals.

2. The CIA “program” of secret arrests, secret detentions, and secret interrogation tactics is shut down.

3. There is a chance that there might be a war crimes prosecution someday because the War Crimes Act made it a crime to violate Common Article III of the Geneva Convention.

The Bush administration abhors the status quo and that is why it has been seeking legislation from the Congress in recent weeks. The proposed legislation will do at least three things:

1. It will revive a policy of trying persons before special military tribunals. (The Supreme Court ruling simply said that Bush could not set up the courts on his own authority).

2. It will, in effect, revive the CIA “program” of “alternative interrogation procedures.”

3. It will immunize past actions of government agents from criminal prosecution.

Given all this, the best thing that can happen is for Congress to simply adjourn.

Tell Me That’s Not Your Final Answer

The congressionally chartered “Citizens’ Health Care Working Group” today released its final recommendations on how to reform America’s health care sector. (I commented on their interim recommendations here and here.)

As with many GOP-led health care reform efforts, this one began with leftist premises about the role of government. Recommendation #1 is that the federal government should “Establish Public Policy that All Americans Have Affordable Health Care.” Recommendation #2 is that the feds should “Guarantee Financial Protection Against Very High Health Care Costs.” (The group inadvertently neglected to cite any passage from the U.S. Constitution that actually grants Congress the power to do such things.)

Given those premises, there was little doubt that the group would recommend left-wing reforms. For example, the group claims to have developed both a “market–based model” and a “social insurance model” for achieving universal coverage. Yet the former is a mirror image of the statist Massachusetts health plan. What kind of “market-based model” increases taxes and government spending while forcing individuals to purchase government-defined insurance policies? Good grief.

I would give my right eye for a health care reform panel that would make this its charter:

To make health care of ever-increasing quality available to an ever-increasing number of people.

To me, that doesn’t just seem simple and non-controversial, it seems to be what everyone involved in health policy wants.

Moreover, a mission like that would force the panel to consider not just the goodness of its intentions, its knowledge of today’s health care sector, or its ability to do math, but also the incentives that its recommendations would create, and their long-term impact.

Let’s hope some enterprising panel-creator is reading this.

The Cato Policy Analyst Who (May Have) Saved a Man’s Life

Who is Cory Maye? He’s a Mississippi man sentenced to death in 2004 for shooting a police officer in a botched, forced-entry drug raid on his apartment. The circumstances look very much like self-defense: a man asleep in his home with his 18-month-old daughter reached for a gun when someone kicked down his door late at night. Maye shot three times into the darkness and killed a police officer. Capital murder, or tragic mistake?

If you’ve heard of the Cory Maye case, it’s almost certainly due to the tireless efforts of Cato Institute policy analyst Radley Balko, who, during the course of researching a Cato policy study on paramilitary drug raids, came across reports of Maye’s conviction, got suspicious, and started digging. If you haven’t heard of the Cory Maye case by now, this will get you started:

At 11 p.m. on the night of December 26, 2001, Ron Jones along with other police officers and 1 agent employed by the Pearl River Basin Narcotics Task Force, a four-county police agency responsible for drug enforcement, went to Maye’s duplex for the purpose of drug interdiction. Jones, though not a member of the Task Force, had received a confidential tip that large quantities of marijuana were being stored and sold in the apartment of Jamie Smith, who lived in the other half of the duplex. The officers obtained search warrants for both apartments. Whether the warrants legally allowed for a no-knock entry is still not clear….

There is disagreement about what happened next. The officers then either served the warrant on Maye’s half of the duplex (later, prosecutors would say both were served simultaneously) or entered what they thought was another door to Smith’s in search of more contraband. Four of the officers who took part in the raid testified they knocked on Maye’s door and identified themselves as law enforcement officers.

Maye testified he heard neither knocks on his door nor anyone announce themselves. Maye testified he was asleep on a chair in the living room when he heard a crash, prompting him to run to his daughter’s bedroom and ready a .380-caliber pistol that he kept boxed and unclipped on top of a tall headboard. When Jones burst into the bedroom, Maye fired three times. Jones was wearing a bulletproof vest, but one bullet hit just below the vest, and the injury proved fatal.

Maye had no criminal record, and police found no evidence of drug dealing. They found only the remnants of one marijuana cigarette. Officer Jones was the police chief’s son. For what it’s worth–and in this case, it’s perhaps a lot–Jones was white, Maye is black. In this recent article for Reason magazine, Radley provides the case against the case against Cory Maye. It is, to put it mildly, hard to believe that a man in no real legal jeopardy would decide to shoot one police officer and then surrender. At the very least, we know enough to say that this man should not be executed.

And, as of last Thursday, it seems that he will not be. A Mississippi Circuit Court judge just threw out Maye’s death sentence on the grounds of inadequate assistance of counsel. I write “seems” and I put “May Have” in this post’s title as a way of knocking wood: Cory Maye could still be sentenced to death again at the rehearing. Unlikely, but possible.

The judge will later rule on the other arguments presented by Maye’s defense team. Maye’s reprieve–temporary or permanent–was made possible by the attention Radley drew to the case on his personal weblog. His posts there piqued the interest of an associate at the white-shoe law firm of Covington and Burling, who then joined local counsel Bob Evans to become part of Maye’s legal team. Congratulations to them, and let’s hope Thursday’s victory draws still more attention to the Maye case, and that they’ll eventually be able to get Maye out of jail.

And if any good can come out of the Maye case, perhaps it can draw attention to the larger issues surrounding the War on Drugs. That war has, as Radley has documented, increasingly shifted from metaphor to reality. And as paramilitary policing tactics and the warrior mindset have infected law enforcement at all levels, the bodies have mounted. Cory Maye could have been–may still become–collateral damage in that war. But for now, thanks to Thursday’s victory, he has new reason to hope.

Roberts and Pro-Executive Minimalism

Over the weekend, L.A. Times Supreme Court reporter David Savage criticized John Roberts for breaking his pledge to be a minimalist judge, pointing to the Chief’s votes with the “conservative” majority in Gonzales v. Oregon and Rapanos v. United States as evidence of his hypocrisy. Ilya Somin and Orin Kerr critique Savage here and here. Ilya, in particular, makes a good point:

Roberts[’] position in Rapanos was that the Corps has very broad discretion under the CWA’s grant of power to regulate discharges into “navigable waters,” but not the power to assert what he rightly called virtually “boundless” regulatory authority. The Corps had claimed the right to regulate virtually any body of water, no matter how small, remote, or nonnavigable, and had persisted in this stance in the face of an adverse Supreme Court decision. No broad assertions of judicial power here.

[H]is positions were hardly contrary to “judicial modesty.” Indeed, in my view, a stronger criticism of Roberts’ performance is that he was too deferential to assertions of federal authority in both cases, particularly Oregon.

See my recent short piece, and earlier blog post, on Roberts’ Rapanos concurrence here for more in that vein.

The confusion points out that “judicial minimalism” can mean different things. Here are just two (of several) possible meanings:

  1. Minimalism could mean protecting expectations created by current precedent, or current understanding of precedent, by reading new, potentially revolutionary decisions, like Raich, narrowly rather than broadly. In fact, Cato’s amicus brief in Gonzales v. Oregon tried to portray a vote for Oregon as a minimalist decision in this sense, arguing that Raich should be read as narrowly as possible in order to protect the pre-Raich expectation of states.
  2. Minimalism could be read to mean that courts should displace democratic politics, rather than floating “expectation interests,” as little as possible, by deciding “no more than is necessary,” leaving as much of a class of questions implicated by the case as possible to democratic judgment. This is much closer to what Roberts appears to believe, and his votes in both Oregon and Rapanos are consistent with this version—carving out as much room for a (federal) political response to the problem as possible.

Notably, though, even if you accepted version two, you could reach a pro-state outcome. Again, Cato’s amicus brief tried to make such a connection by portraying a narrow reading of Raich in that case as a reading favoring the decisionmakers with the superior democratic pedigree—that is, Oregon voters who, by direct referendum, had voted for legalizing assisted dying (twice). Even if agencies have a greater democratic pedigree than courts, state referenda have a far better democratic pedigree than the rulings of federal agencies.

The upshot is that minimalism is an indeterminate concept, less a theory of judging than a mood or intuition whose outcome depends on unexpressed background preferences. Oregon suggests that Roberts’ operative background preference is to preserve the flexibility of agencies under executive control by weighting their interests more than competing state interests when the law is open-textured. Perhaps, this might be called a kind of pro-executive minimalism.