Topic: Law and Civil Liberties

Sandy Berger: Oops, I Must Have Accidentally Stuck the Wrong Papers in My Briefcase, Hidden Them under a Construction Trailer, Come Back to Get Them, and Cut Them into Shreds

The Washington Post reports

On the evening of Oct. 2, 2003, former White House national security adviser Samuel R. “Sandy” Berger stashed highly classified documents he had taken from the National Archives beneath a construction trailer at the corner of Ninth Street and Pennsylvania Avenue NW so he could surreptitiously retrieve them later and take them to his office, according to a newly disclosed government investigation.

The documents he took detailed how the Clinton administration had responded to the threat of terrorist attacks at the end of 1999. Berger removed a total of five copies of the same document without authorization and later used scissors to destroy three before placing them in his office trash, the National Archives inspector general concluded in a Nov. 4, 2005, report.

After archives officials accused him of taking the documents, Berger told investigators, he “tried to find the trash collector but had no luck.” But instead of admitting he had removed them deliberately — by stuffing them in his suit pockets on multiple occasions — Berger initially said he had removed them by mistake.

The fact that Berger, one of President Bill Clinton’s closest aides from 1997 to 2001, illicitly removed the documents is well-known: A federal judge in September 2005 ordered him to pay a $50,000 fine for his actions and forfeit his security clearance for three years.

What Berger did, and the ham-handed and comical methods by which he did it, are freshly detailed in the National Archives report, which the Associated Press obtained first under a Freedom of Information Act request.

Although the report reiterates that Berger’s main motive was to prepare himself for testifying before a commission investigating the Sept. 11 attacks, it makes clear that he not only sought to study the documents but also destroyed some copies and — when initially confronted — denied he had done so.

His lawyer, Lanny Breuer, said in a statement yesterday that Berger “considers this matter closed, and he is pleased to have moved on.”

More special rules for Washington insiders?

HHS Considering Nationwide System of Electronic Healthcare Records

The Department of Health and Human Services (HHS) has given notice in the Federal Register that it would like to receive comments on, among other things, a recommendation by the American Health Information Community (AHIC), a chartered federal advisory committee, to advance the development of electronic health records (EHR).

The recommendations suggest a nationwide approach to developing digital and interoperable health IT systems. (“Request for Information (RFI): Improving Health and Accelerating Personalized Health Care Through Health Information Technology and Genomic Information in Population — and Community — Based Health Care Delivery Systems.” 71 FR 64282 (Nov. 1, 2006). Comment period closes Jan. 2, 2007.)

There is no doubt that the sharing of healthcare information can be in a patient’s best interest and contribute to the facility and accuracy with which the healthcare system cares for patients. Nevertheless, healthcare information should remain as much as possible within a patient’s own control. Healthcare institutions may wish to establish shared databases, but the government should not mandate or suggest that the Joint Commission on Accreditation of Healthcare Organizations or states mandate integrated data networks.

The U.S. healthcare system is suffering from a serious trust crisis and mandating the collection of medical data may very well add to that crisis. Many people associate data collection with criminal data bases and fear the misuse of widely available data. The perception of possible misuse, regardless of how real or unreal that perception may be, is going to create mistrust and suspicion of everyone involved in the data collection process. 

In addition to the publicly perceived dangers of such a system, there is at least one just as efficient, but much less costly, alternative: Digital healthcare memory, or “data sticks,” could provide each patient with his or her own personal database. A patient’s memory stick could be plugged into any doctor’s or hospital’s computer, making the patient’s medical records available everywhere in the world, not just within a national network of hospitals. This simple and relatively inexpensive solution would leave a person’s medical records completely in his or her own control, allowing the person to decide when, where, and to whom to disclose such personal information.

At least one company, PinnacleCare, provides such data collection as part of its comprehensive range of patient support services. There is no reason why hospitals, as a customer service, couldn’t provide such data downloads as part of their services. Physicians and hospitals already photocopy records for patients, so why not simply provide digital downloading of such records instead? 

Digital records are easily updated and transported. Patients, if they chose to do so, could wear their medical data stick on a lanyard, carry it in their wallet, leave it at home, or lock it in a safe. The choice of what to do with a person’s personal medical data and how to protect it would rest with the patient. 

Such a solution would be simple, cheaper and make personal medical more readily available to a wider range of practitioners — all without risking further erosion of patient trust in the healthcare system.

Prosecutors Subpoena ACLU

Federal prosecutors are using a grand jury subpoena in an attempt to force the ACLU to return a leaked document, which was apparently classified.

The grand jury is a legal enigma.  For background, read this Cato study

Excerpt:

The grand jury is perhaps the most mysterious institution in the American criminal justice system. While most people are generally familiar with the function of the police officer, the prosecutor, the defense lawyer, the judge, and the trial jury, few have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens.

Like its more famous relative, the trial jury, the grand jury consists of laypeople who are summoned to the courthouse to fulfill a civic duty. However, the work of the grand jury takes place well before any trial. The primary function of the grand jury is to inquire into the commission of crimes within its jurisdiction and then determine whether an indictment should issue against any particular person. But, in sharp contrast to the trial setting, the jurors hear only one side of the story and there is no judge overseeing the process. With no judge or opposing counsel in the room, grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene. Indeed, the single most important fact to appreciate about the grand jury system is that it is the prosecutor who calls the shots and dominates the entire process.

This ACLU case has the potential for a landmark precedent regarding the scope of the grand jury’s subpoena power.

Posner’s “Avatar” Talks Law

Seventh Circuit Judge Richard Posner’s “avatar” recently engaged in an online discussion in “Second Life,” a virtual online world.  A transcript is now available at New World Notes here

For those of you who aren’t familiar with Posner, he is perhaps the most influential, and certainly the most prolific, federal judge alive.  For those of you who aren’t familiar with avatars or virtual worlds–and, to be quite honest, I fall in this camp, having only heard about this phenomenon secondhand (in Larry Lessig’s great book, Code and Other Laws of Cyberspace)–see these descriptions

Here’s a taste of the sometimes surreal discussion (“JRP” is Posner, SL stands–I think–for “Second Life”):

Ludwig Swain: Copyright question: would you consider the “cloning” of a copyrighted real world architectural work into SL to be infringement or fair use?

Ben Solomon: No fair. That’s Bill Patry’s question

JRP: I think Patry is in here somewhere– maybe he’s the raccoon.

Basman Kepler: I believe Patry has described his avatar as looking like Swiper the Fox from the Dora cartoons.

JRP:  Great question on cloning a copyrighted real world architectural work into SL– probably infringement, on the theory that the SL counterpart is a derivative work, hence the property of the copyright holder.  These are excellent questions!

Say what you will about Posner, he has a sense of humor.

N.C. Police Shooting Results in Murder Charge — Or Not

Police shootings have come under sharp public scrutiny in recent weeks following incidents in New York and Atlanta that led to the deaths of, respectively, an unarmed bridegroom and an elderly woman. Not only have the involved officers been chastised for their actions, but so have internal affairs investigators whom critics claim are moving too slowly.

That criticism didn’t seem to apply to the investigation of a Dec. 1 police shooting of an allegedly unarmed community college student in Wilmington, N.C. Within two weeks, one of the involved officers was fired and charged with murder.

Or not.

Within 24 hours of the indictment, the foreman of the grand jury told the court that he accidentally checked the wrong box on the indictment form. The murder charge has since been rescinded.

For the latest developments in the N.C. shooting, visit Wilmington attorney Tom Kerner’s civil rights blog.

It is unclear what lesson should be drawn from the N.C. indictment/undo. Does it show that investigations need to move slowly to prevent errors? Does it mean the cops involved really were blameless? Or does it indicate that it’s difficult to hold law enforcement officers accountable for wrongful actions, even if those actions result in the death of one of the citizens that officers are forsworn to serve and protect?

One thing that is clear is that reports of questionable police shootings are becoming far too frequent, as followers of Radley Balko and Tim Lynch’s work already know. Here’s Radley’s excellent report on the militarization of American police units. And here is Cato’s map of botched police raids, which apparently may soon include new pushpins for Atlanta and Wilmington.

Bovard on the Military Commission Act

Jim Bovard has a piece in the American Conservative

Excerpt:

The MCA awarded Bush the power to label anyone on earth an enemy combatant and lock then up in perpetuity, nullifying the habeas corpus provision of the Constitution and “turning back the clock 800 years,” as Sen. Arlen Specter (R-PA) said. While only foreigners can be tried before military tribunals, Americans accused of being enemy combatants can be detained indefinitely without charges and without appeal. Even though the Pentagon has effectively admitted that many of the people detained at Guantanamo were wrongfully seized and held, the MCA presumes that the president of the United States is both omniscient and always fair.

Read the whole thing. 

Thanks to Andrew Sullivan for the pointer.

“Data Mining Doesn’t Catch Terrorists”

That’s the quickest summary of a paper the Cato Institute issued today, which I co-wrote with Jeff Jonas, distinguished engineer and chief scientist with IBM’s Entity Analytic Solutions Group.

Data mining is the effort to gain knowledge from patterns in data.  A retailer can use data mining to sift through past customer interactions and learn more about potential new customers, but it can’t figure out which customers will actually come into a new store.  Terrorism is so rare in society that there are no patterns to search for.  Data mining has no capability to ferret out terrorists. 

It appears that the Automated Targeting System, which made news last week (because of its previously unknown focus on American travelers), uses data mining.  It sifts through information about border-crossers to assign them a “risk score.”

In a National Journal article published last week, Secretary of Homeland Secretary Michael Chertoff discussed ATS, revealing the need for government officials to get more clear about what they are doing, what works, and what doesn’t work.  According to NJ, Chertoff called ATS “the process by which we collect that information and analyze it to see what are the patterns and the relationships that tell us, for example, that a particular telephone number is associated with a terrorist, or something of that sort.”

Comparing the number of a traveler to phone numbers of terrorists is data matching and it is not what ATS does - or at least not the interesting part of what ATS does.  Data matching, link analysis, or “pulling strings” is a proven investigative method and, as we discuss in our paper, it’s what could have prevented the attacks of 9/11.

There should be forthright public discussion about whether a program like ATS, or any data mining program, can catch terrorists.  Such a program might help fight ordinary crime, where suitable patterns may be detectable.  But whether the public would countenance mass surveillance for ordinary crime control is a different question than whether it would accept such methods to prevent terrorism.