Topic: Law and Civil Liberties

Boston Tea Party? REAL ID Party!

Our nation has many gentle rivalries. As a northern California native, I have always known that I’m slightly superior to our friends in So Cal. (LA-LA land’s ignorance of our disdain validates it wonderfully, by the way.)

Maine people have a similar feeling toward their neighbors in Massachusetts (even while they root for Boston’s professional sports teams). This is among the things I enjoyed discovering this week as I traveled to the far northeast for some lively discussion of the REAL ID Act.

On a panel I was privileged to join at a community center in Augusta Wednesday night, George Smith, executive director of the Maine Sportsmen’s Alliance, stood to share his opinion of our national ID law and what Maine should do about it. A Norman Rockwell painting come to life, he spoke with all the directness (and accent) of a lifelong Mainer. Summarizing, his message was this: They had their Boston Tea Party. Let’s have a REAL ID Party!

All the spirit and independence that makes me so proud of Americans — without sparing that family rivalry for even a minute!

The result of George’s work — along with the Maine Civil Liberties Union and a bipartisan consensus of the state’s political leaders — was near unanimous passage of a state resolution refusing to implement REAL ID. Maine is now the first state to reject the REAL ID Act, and the tide against the bill is beginning to run. 

(For some equally stirring rhetoric in defense of liberty and against a national ID, here’s New Hampshire Representative Neal Kurk (R-Weare) on the REAL ID Act last year. New Hampshire is one of many states likely to join Maine in rejecting a national ID.)

I have tried to supply the intellectual arguments for rejecting a national ID in my book, Identity Crisis: How Identification is Overused and Misunderstood. I was pleased to offer Smith and a number of Maine’s political leaders copies of the book. 

Bloomberg Wins the Nanny State Olympics

As he counts his money and ponders an independent bid for the presidency, New York mayor Michael Bloomberg has won one competition. He’s the biggest nanny-statist around. Sure, Bangor is banning smoking in cars if children are passengers, and Arkansas governor Mike Huckabee wants to get rid of cigarettes, and Texas wants to require parents to attend parent-teacher conferences, and Kansas wants to require all seventh-grade girls to get vaccinated against a sexually transmitted infection. But for sheer nannyism, can you beat this?

Available soon: an official New York City condom.

Mayor Michael Bloomberg’s administration wants to reduce rates of sexually transmitted diseases and AIDS, and part of the strategy is the aggressive promotion of free condoms. Officials say more people will use them if they have jazzy packaging.

One idea is a subway theme, with maps on the wrappers.

“Brands work, and people use branded items more than they use nonbranded items, whether it’s a cola or a medicine even,” Health Commissioner Thomas Frieden said.

The United States Owes Hillary Clinton a Debt

Hillary Clinton’s announcement of her presidential bid has evoked several news stories predicting the demise of the presidential public financing system.

In Buckley v. Valeo, the U.S. Supreme Court decided that spending limits violated the First Amendment. The same decision, however, said that the government could impose spending limits in exchange for public financing of a campaign. The presidential system enacted just after Watergate provided public funding for primary campaigns (on a matching basis) and for the general election. The law established equal spending limits and prohibited private fundraising for the general presidential election for the major party candidates.

McCain-Feingold is also part of this story. That 2002 law liberalized contribution limits a bit which made it easier for strong candidates like Hillary Clinton to raise more money privately than she would receive from the public funding scheme. Of course, she could accept public funding and forego the larger sums she might raise privately. However, her competitors for the nomination – say, Barack Obama or John Edwards – might also be able to raise more money privately, and they would do so to gain an edge in the primaries over Sen.Clinton. The same might well be true of the Republican candidate in the general election. If Sen. Clinton took the public funding and its spending limits, she would be outspent by the GOP nominee. Given all these considerations, Sen. Clinton has decided to forego public funding. Any serious candidate for the presidency in 2008 is likely to make the same decision.

Too much political analysis, you might say. After all, didn’t Congress create the public financing system to prevent corruption of candidates or “level the playing field” for outsiders?  The members of Congress who created public funding ascribed such noble and moral ends to their effort. But the actual purposes of the system were rather less noble and more partisan.

From 1960 to 1974 – the year public funding was created – the Democratic presidential candidates fell increasingly behind their Republican opponents in fundraising. Remember, the public funding scheme required equal spending by both major party candidates in the general election. The law was, in short, a good solution to the emerging Democratic presidential fundraising gap. In The Fallacy of Campaign Finance Reform, I looked at how this equalization affected the two parties after 1974, assuming the trend in fundraising from 1960 continued to 1992. The public funding law cut projected Republican fundraising (and campaign spending) by 60 percent while imposing no limit on expected Democratic donations or expenditures.

From the start, the presidential public funding system was a raw partisan ploy obscured by a moralistic rhetoric. It worked in the sense that some analysts believe the equalization of funding gave the presidency to Jimmy Carter in 1976. But the system has failed otherwise. It has not increased entry into the party primaries compared to the system it replaced. Public funding has forced taxpayers to support candidates they would not support if they had a choice. For that reason, the system has lost 75 percent of its supporters over the years. Now only about 7 percent of taxpayers check off support for the presidential fund. In 1978, 28 percent did so.

That lack of public support means Congress is unlikely to save the system. In any case, Democratic presidential candidates have drawn even with their GOP counterparts in fundraising. The real, partisan reason for the system no longer exists. Soon the system itself will be the first choice of those who finish last. Surely Congress could find a better use for a few hundred million dollars.

Supreme Court Sentencing Ruling

As usual, NYT Supreme Court reporter, Linda Greenhouse, has a good report about yesterday’s sentencing decision from the Supreme Court. 

Excerpt:

The Supreme Court invalidated California’s criminal sentencing law on Monday, ruling that the 30-year-old statute gave judges authority that the Constitution places with juries.

The 6-to-3 decision will require the California courts to reconsider thousands of sentences as the Legislature contemplates its options for amending the statute to meet the justices’ objections.

While no other state is directly affected, Justice Ruth Bader Ginsburg’s forcefully worded majority opinion demonstrated that the Roberts court is committed to carrying out the full implications of the revolution in criminal sentencing that the court began seven years ago in Apprendi v. New Jersey.

In fact, with Chief Justice John G. Roberts Jr. joining the majority, the court planted its stake more firmly than ever in what criminal law scholars and practitioners have taken to referring to as Apprendi-land.

Round-up of coverage here.

Ruling here.

I have argued that this legal trend is a positive development [.pdf] and the ruling will indeed impact the sentences of thousands of prisoners in California.  Still, some of the “revolutionary” rhetoric is overblown.  For more Cato work on sentencing, go here.

A Great Moment for the Nanny State or Legislative Satire?

A bill has been introduced in Texas that makes missing a parent-teacher conference a criminal offense.

Now, before everyone gets all upset, having a good excuse is an acceptable defense for parental misbehavior in being absent from the classroom.  And it’s only Class C Misdemeanor.  And the fines will be used strictly for educational purposes.  Of course, there is no provision outlining what exactly constitutes a reasonable excuse, or whether a parent needs to get a signed note from his/her respective parents/doctor/boss, etc.  But I’m sure all of these details will work themselves out in due time.

I applaud the civic-minded Wayne Smith (R- Harris County) for addressing the problems that a lack of parental involvement in education can cause, but it seems to me that this might run afoul of personal liberty and violate the integrity of the family.

In fact, this law seems to directly conflict with a quote Mr. Smith has prominently displayed on his website:

“Let’s continue the fight to lower our taxes, reduce government bureaucracy and waste, and return to traditional family values.”

Now, I might be wrong, but Mr. Smith’s proposal looks like it will cost more money, increase government bureaucracy and waste, and undermine the sovereignty of the family that is the center-piece of traditional family values!  His bill would make parents as well as children a ward of the state.  I guess Mr. Smith thinks it takes a government-mandated village to raise a child and discipline a family.

Hold on!  Perhaps Mr. Smith is presenting a “modest proposal” in order to demonstrate the absurdity of our government-run school system.  Surely Mr. Smith knows that the best way to get parents involved in their child’s education is to allow them to control their child’s education!  Everyone should be on the lookout for a universal education tax credit bill on sales and property taxes to follow this intriguing foray into the new art of legislative satire. 

More on Bush’s Surveillance Flip-Flop

Based on the DOJ briefing regarding the NSA surveillance about-face, it appears that the Foreign Intelligence Surveillance Court (FISC) is not approving surveillance on a program-wide basis.  Instead, it is issuing individualized surveillance orders against particularized targets.  It remains unclear, though, how exactly the FISA orders have changed to permit more “speed and agility” and, because so much is taking place within the dark, all suggestions are pure, unadulterated guess-work.

One compelling theory is Orin Kerr’s:  namely, that the FISA court is issuing anticipatory warrants (warrants based on a finding that there is probable cause to search when a future triggering condition appears.)  As Kerr notes, that’s consistent the one bit of evidence we can glean:  that the FISA court is limiting the approval orders to a 90 day period, rather than the full statutory one year period permitted under FISA.  Shorter review is consistent with ensuring that the triggering condition for the search and the probable cause requirement mesh.  It also helps explain the timing, since the Supreme Court approved anticipatory warrants in United States v. Grubbs last term.  (For more on Grubbs, read Professor David Moran’s article on last term’s Fourth Amendment cases, The End of the Exclusionary Rule, Among Other Things, in the latest Cato Supreme Court Review.)

Kerr’s theory, however, doesn’t explain one part of the puzzle:  multiple sources’ statements to the Washington Post that the orders touch on ”programmatic” issues.  What might this mean, if FISC is approving orders on a case-by-case, rather than program-level, basis?

One possibility is that DOJ has adopted a streamlined internal approval process for emergency FISA applications within the executive branch, and that FISC has approved it.  FISA imposes some internal pre-approval requirements for emergency applications–including review by the AG and a cabinet level official with foreign affairs responsibility.  In February testimony last year, Gonzales complained at length that this statutory approval process had become overly cumbersome:

To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances. 

But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance. 

This requirement can be cumbersome and burdensome.  Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application.  Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.  

But even this is not the end of the story. 

Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI. 

Finally, a judge must review, consider and approve the application.  All of these steps take time. Al Qaida, however, does not wait.  … Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.  

In the briefing on the new FISA process, however, the administration noted that one change that made compliance with FISA possible was a change in executive branch “infrastructure”:

[O]ne thing that did change was – authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will – be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.

One way to read this is that the new FISC order finds that new streamlined executive branch procedures for internal review of emergency applications accords with FISA.  Its hard, unfortunately, to guess exactly what such procedures might be, but it almost certainly includes eliminating duplicative layers of legal oversight within the executive.

Goodbye Warrantless NSA Surveillance?

The DOJ announced today it has reached a double super-secret deal with the FISA court which allows it to bring the administration’s NSA surveillance program within the statutory FISA framework governing surveillance warrants. What deal, you ask? The DOJ’s letter to Senators Leahy and Specter provides few details, except to say that it is based on a FISA court order that establishes “innovative” and “complex” warrant procedures that allow the administration to act with “speed and agility.”

Absent further information, its hard to tell whether this is a good development, although as Marty Lederman notes, it is “difficult to imagine that the FISA court would roll over and approve an ‘innovative’ legal theory if it were dubious – especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly.”

The administration’s about face underscores what I argued in this piece: that the administration’s claims that it was simply too cumbersome to comply with FISA held absolutely no water.

Lederman also notes that the threat of losses in ongoing multi-district litigation involving the state secrets privilege as well as the threat of congressional subpoenas, and possible litigation over executive privilege, may well have prompted the administration to give up its go it alone stance. I’ve previously argued that such threats had the potential to rein in the administration, without involving a winner-takes-all show down with the Supreme Court, here.