Topic: Law and Civil Liberties

Tierney Goes Dutch

John Tierney wrote his Saturday New York Times column from Amsterdam, where he found that contrary to what U.S. drug warriors would have us believe, lenient Dutch drug policy hasn’t wrought the end of Dutch society.

I do think, however, that libertarians should hesitate before citing the Dutch as a model. Last year, I attended a forum at the Dutch embassy on drug policy in the Netherlands. I was underwhelmed.

The Dutch treat drug use a little like the way the public health crazies in this country would like to treat obesity. That means there is freedom to ingest some illicit drugs, but with massive government intervention, oversight, and a panoply of PR campaigns and state-funded treatment, and very little in the way of holding users responsible for using drugs, well, responsibly.

At the forum I attended, Dutch officials were quick to correct any misunderstanding Americans might have that Dutch citizens are actually given any real freedom over what they put into their bodies. The Dutch government, they assured us, loathes and despises marijuana every bit as much as the American government. They just prefered to steer the Dutch people away from it with propaganda and heavy regulation.

That’s certainly a step up from no-knock raids, mandatory minimums, and confidential informants. But it’s still a far cry from a government that treats its citizens as adults capable of making their own decisions about intoxicants.

Seizures for SWAT

TheNewspaper.com reports that several towns in South Texas are ratcheting up money and property seizures from motorists:

In the South Texas city of San Juan, population 26,200, police have begun seizing ever greater amounts by taking both cash and vehicles from motorists. In 2005, officers collected $4400. This year, however, the force has collected $67,000. Pharr, with a population of 47,000, collected $422,000 last year. McAllen, a bigger city with 106,000 residents, collected $484,000. A federal appeals court ruling this week concluded that driving with a large amount of cash is sufficient justification for police to confiscate it, even if there is no evidence that a crime has been committed.

Guess what these towns are apparently doing with the money?

On a related note, a number of cities and towns across the country have apparently been given between $100,000 and $200,000 in Homeland Security funding to purchase armored personnel carriers for their SWAT teams. If I remember correctly, the Department of Homeland Security was supposed to be a government agency charged with fighting terrorism and responding to natural disasters.

I suppose it’s possible that places like Lake Canyon, Idaho, Eau Claire, Wisconsin, and Tuscaloosa, Alabama are high-risk terror targets. But my guess is that their new federally-funded military-grade toys will primarily be used for routine enforcement of drug laws. This quote from an official in Eau Claire seems to confirm my suspicions:

An armored truck isn’t necessary for all situations where SWAT teams are used, Matysik said.

“But because it’s available, we’ll probably use it just to be cautious,” he said.

The militarization of domestic policing continues.

More Contempt for Private Property

The New Hampshire Supreme Court has upheld yet another outrageous seizure of private property. From a editorial in the Manchester Union-Leader condemning the ruling:

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen’s CDs. In the state Supreme Court’s Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.

[…]

The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity.

It should go without saying that speculation by a few judges that a crime might have been committed is a frightening basis for taking someone’s property.

Nearly all of the outrages we write about at Cato – foreiture cases, the Kelo case, no-knock and paramilitary raids, and the smoking bans David Boaz blogged about earlier –are the result of the wholesale disintegration of respect for property rights in America. A country that truly believes in private property wouldn’t allow government agents to seize and keep it without due process. Nor would it allow government agents to break down doors to private homes in the middle of the night to enforce consensual crimes – some 40,000 times per year. Nor would it allow the state to take the property of one citizen and give it to another, for purpses of increasing the tax base. Nor would it allow the state to tell a private business owner whom he can and can’t serve, and what terms, in the interest of controlling the private behavior of his customers.

It isn’t surprising that these violations of property rights spill over into violations of personal and economic freedom. Property rights are the very foundation of our civil liberties. A government that’s quick to restrict what its citizens can do with their private property won’t hesitate to restrict, for example, free speech (see campaign finance “reform”). A government that refuses to recognize a man’s property in his own body (re: drug prohibition) won’t hesitate to those laws by confiscating actual, physical property without due process.

The founders of course understood the fundamental connection between private property and civil liberties. James Madison was particularly eloquent on the point:

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

[…]

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

[…]

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.

When government has no respect for our rights of property, we oughtn’t be surprised when, likewise, it fails to respect our property in our rights.

Data Mining or the Fourth Amendment?

Boalt Hall Law Professor and Visiting AEI Scholar John Yoo writes in a short piece on the AEI website that we should consider using data mining to pursue terrorists. He makes at least two errors: one historical and one statistical.

Discussing the recent vogue for making U.S. law more like Britain’s, Yoo writes:

[I]ncreasing detention time or making warrants easier to come by merely extends an old-fashioned approach to catching terrorists. These tools require individualized suspicion and “probable cause”; police must have evidence of criminal activity in hand. Such methods did not prevent 9/11, and stopping terrorists, who may have no criminal record, requires something more.

It’s hard to put aside that the vogue for making U.S. law more like Britain’s would undo part of what the Revolutionary War was fought for. And Yoo’s placement of the phrase “probable cause” in quotes — I hope that’s not to suggest that the language of the Fourth Amendment is quaint.

But putting all that aside, Yoo’s first error has to do with more-recent history. He argues that traditional investigative methods “did not prevent 9/11.” But traditional investigative methods weren’t applied to the problem. 

Operatives like Khalid al Midhar — an individual with jihadist connections known to the United States — entered the country, left in June 2000, and returned July 4, 2001 on a visa the United States gave him. As the 9/11 Commission pithily noted, “No one was looking for him.” Traditional investigative methods can’t be said to have failed when they weren’t being used.

Yoo’s second error is to believe that data mining can help locate terrorists. Data mining cannot be made useful in counterterrorism: The absence of terrorism patterns means that it is impossible to develop useful algorithms. The corresponding statistical likelihood of false positives would cause the results of a data mining operation to waste the time and energy of investigators while threatening civil liberties. 

Data mining does give a “lift” to marketers’ attempts to find people with certain propensities and interests. But the ”failure rate” (if the goal is to find new, willing customers) is typically above 95%. This is with hundreds of thousands, or even millions, of patterns to work with. Data mining also helps ferret out credit card fraud — again, using the thousands of instances of this crime that happen each year to develop useful algorithms.

Probability theory teaches that the percentage of false positives a test produces will rise dramatically as the incidence of the sought-after condition drops. If you’re searching American society for left-handed people (8–15% of the population) a data mining operation might work pretty well.  If you’re searching for the 10, 12, or two terrorists in the United States, an imperfect test will be useless, time-wasting, and thus harmful to the national security mission.

No, the Fourth Amendment is good policy as well as a part of the not-old-fashioned Constitution. It is better to focus investigations, not broaden them. The best way to find wrongdoing is to look where there is probable cause to believe something is afoot.

Presidential Public Financing Failure

The push is on to revamp and re-fund the public financing of presidential campaigns. 

Brad Smith and Robert Bauer have raised a number of doubts about the presidential system. A while ago, I wrote a policy analysis examining the effects of the presidential system. My new book, The Fallacy of Campaign Finance Reform, extends that argument.

Here I focus on one question:

The 1976 campaign finance law provided generous subsidies to presidential candidates pursuing party nominations and running in the general election. You would think that the availability of public money would increase the absolute number of candidates for the presidency compared to elections prior to 1976. Has the presidential system led to more candidates for the presidency, more choices for voters, and more competition for the highest office?

Apart from the major party candidates, nine presidential candidates in the general elections since 1948 have received more than 1 percent of the total vote in an election. Five of those candidates ran after the presidential system was created in 1976. Not all five accepted public financing. Ross Perot did not accept taxpayer financing in 1992, preferring to spend $65 million of his own money on his candidacy. Ed Clark, the Libertarian candidate in 1980, also did not take taxpayer financing. 

In all, six of the nine non-major party candidates who have made a mark in presidential elections since 1948 ran their campaigns without the help of the taxpayer. Moreover, the two top vote-getters during the period — George Wallace in 1968 and Ross Perot in 1992 — made do without subsidies.

The presidential system might be credited with three additional presidential campaigns in seven general elections (Ralph Nader in 2000, Ross Perot in 1996, and John Anderson in 1980). Nader received 2.7 percent of the vote, Perot got 8.4 percent, and Anderson obtained 6.6 percent. None of those candidates received a single electoral vote.

I wrote that the system “might be credited.” We should not conclude that because those candidates did use public money, they would not have made their races if the presidential system had not given them money. The private system in place in the seven general elections prior to 1976 produced four serious candidates apart from the major party candidates. Had the system not been enacted, Nader, Perot, and Anderson might also have raised enough money to challenge the major party candidates.

What about the party nominations? Most of the money paid out by the presidential system has gone to fund the conventions of the two major political parties (10 percent of all funding) and the major parties’ candidates in the general election (61 percent of all funding).

Candidates running in the primaries have received a little over $506 million, or about 29 percent of all outlays by the presidential system. That money has funded 83 candidates in the primaries. Of those, 71 were candidates for the nominations of the two major political parties. Of those 71, 55 candidates received over 1 percent of the total number of votes cast in a party’s presidential primaries for a given year, an average of 7.8 candidates each presidential election.

How does that compare with the number of primary candidates prior to the presidential funding system? The seven elections prior to 1976 included an average of 10.7 candidates in the party primaries. If we measure competitiveness by entry into a race, the years prior to public subsidy of presidential campaigns seem somewhat more competitive than the years after 1974. 

What’s the verdict? U.S. taxpayers have given candidates almost $2 billion to campaign for the presidency. That money has not bought more choice in the party primaries or in general presidential elections.