Topic: Law and Civil Liberties

ONDCP’s Smoke and Mirrors

Bruce Mirken of the Marijuana Policy Project sends along video of Office of National Drug Control Policy (ONDCP) chief John Walters openly boasting about using federal tax dollars to defeat Question 7, a Nevada ballot initiative that would effectively legalize possession of up to one ounce of marijuana for personal use. 

Walter’s mere presence in the state to speak against the initiative seems to violate the Hatch Act,  not to mention his use of federal dollars to organize against it. Unfortunately, the Office of Special Counsel seems to have made a gaping “drug war exception” to the act, despite the fact that what Walters is doing seems to be in direct defiance of the plain language of the law.

Violation or no, Walters’ and ONDCP’s interference in a state election is yet another example of the Bush administration’s utter contempt for federalism. This administration’s definition of the term seems to be, “the states should be able to set their own policy, except when we disagree with them.”

Notice, too, that even if we were to accept that the social maladies Walters says “correlate” with marijuana use (a relationship that has zero scientific value, and thus oughtn’t even enter into policy discussions), most are caused by the drug’s prohibition, not its recreational use.

Enemy Combatants

Glenn Greenwald has a good post on the latest developments in the Jose Padilla case.

By way of background, President Bush has claimed the power to arrest any person in the world and to lock that person up indefinitely without a trial.  So long as Bush issues an “enemy combatant” order to his Secretary of Defense and not his Attorney General, the imprisonment is supposedly legal because Bush is acting as the Commander-in-Chief during a time of war. Most Americans are probably unaware that Bush believes that he can use the same powers here in the USA.  He has already done so.  That’s what the Jose Padilla case is all about and it is why the legal community follows it so closely.  A legal precedent is being set here.

Padilla is the American citizen who was apprehended at Chicago’s O’Hare airport.  The feds locked him up as an “enemy combatant” for some three years and just a few months ago they moved him to civilian court to face criminal charges in Florida.  Now that Padilla is out of the hole of solitary confinement, we are starting to learn for the first time what went on at the Naval brig during the years that he was held there incommmunicado.  The legal filings by Padilla’s lawyers are disturbing–stress positions, sleep deprivation, etc. (A word of caution: To my knowledge, Padilla’s lawyers are making allegations.  We do not yet know if the government disputes the allegations in whole or in part.  Greenwald is correct to point out that Congress recently approved such interrogation tactics against prisoners.)

Why does this matter?  Well, whatever one’s view on the propriety of our government’s policies concerning the wartime capture and treatment of non-citizens overseas, most everyone will agree that if we are serious about limited government, we must keep an eye on potential overreaching here at home.  Liberty in America rests upon a system of checks and balances.  The police can arrest us at any moment, but the judiciary can “check” lawless police actions fairly quickly.

Mr. Bush (and his successors) can now bypass the judiciary by simply issuing an “enemy combatant” order.  That means the liberty of every American rests upon nothing more than the grace of the White House (actually lower level bureaucrats).  Some may shrug and say “This is war.  Captured terrorists don’t belong in fancy hotels.  Heck, some harmless drug offenders might be raped or stabbed in a U.S. prison.” 

True enough, but isn’t that like saying “Yes, the casualties are mounting in Iraq, but so what.  Didn’t ya know the U.S. lost 6,821 Marines at Iwo Jima, a single battle?”  My point is that we ought to be careful about how we intend to assess the actions of the government.  Let’s strive to keep the government limited and to minimize casualties, mistakes, and injustices.

Fukuyama on Secrecy: Read the Whole Thing

A few days ago, the New York Times ran a piece by Francis Fukuyama called “The American Way of Secrecy” [registration required] in which he deftly interweaves the twin scourges of threat exaggeration and secrecy.  He also recites the damage they have done to U.S. foreign policy, national security, and domestic tranquility.  No one quote captures this rich, brief essay, so I will indulge in a blogger cop-out and encourage you to read the whole thing.

(HT: Bruce Schneier)

Voter Fraud and Other Political Facts

The House bill to require photo ID for voting rests on the premise that voter fraud is a significant problem. It turns out that premise is a little shaky. A report prepared for the U.S. Election Assistance Commission has found little evidence of polling-place fraud, according to USA Today.

The Commission on Federal Election Reform (Carter-Baker Commission) found “no evidence of extensive fraud in U.S. elections or of multiple voting,” though it does occur and could affect a close election. To inspire confidence in the system, the Commission recommended using the national ID card created by the REAL ID Act as a voter registration card. Proof of citizenship would be required to get a driver’s license, tightening government control of the citizenry just a little more.

I’ve written here before about “political facts,” things made true by consensus rather than any measurement or observation. The soaring costs of identity fraud and its relationship to data breaches are political facts that have a lot of currency in Washington today.

Another political fact getting a lot of attention and lather is the notion that child pornography has become a $20 billion dollar industry. “Exponential” growth of this problem is being used to justify legally mandated retention of data about our online travels by Internet service providers. Exploitation of children is loathsome, but it turns out the $20 billion figure is bunk.

One wonders how many other problems Congress addresses itself to might be exaggerated or even fictional.

WSJ Weighs in Against ‘REAL Bad ID’

This morning’s Wall Street Journal opinion page blasts Republicans for passing the REAL ID Act.  [subscription required] 

Keyed to a recent report showing the costs of compliance at $11 billion, the piece notes that all Americans will have to reapply for their drivers’ licenses and ID cards if states go along with this unfunded federal surveillance mandate.  It also addresses whether a national ID protects against terrorism or provides effective immigration control and finds REAL ID wanting on both counts.  My book Identity Crisis shows why.

Sooner rather than later, Congress will recognize its error in passing the REAL ID Act.  Most likely it will try to kick the can down the road.  Look for a quiet attempt to change the deadline for getting a national ID in everyone’s hands. 

But that is not the solution.  If Congress wants a national ID, it should have hearings, markup and pass legislation, then fund and implement a national ID itself. 

Congress didn’t have a single hearing or up-or-down vote on the REAL ID Act.  This much exposure would kill a national ID plan, of course.

Amnesty? What Amnesty?

Here’s an interesting and under-remarked, cert. petition involving separation of powers claims pending before the Court: Stolt-Nielsen S.A. v. USA. Stolt presents a minor key in a major symphony: the ongoing debate over the boundaries of judicial control over the executive branch. Here, the Department of Justice claims courts lack the power to enjoin the Department of Justice from breaching immunity agreements entered with corporate defendants in the cross-hairs of federal antitrust investigators.

A bit of background: The federal government operates an amnesty program, called the Corporate Leniency Program, under which DOJ covenants not to prosecute firms that cooperate with antitrust investigators, so long as a series of conditions are met.

In 2002, Stolt-Nielsen contacted the DOJ Antitrust Division with an offer to cooperate in the investigation of collusive trading practices between Stolt and two competitors. DOJ executed a conditional amnesty agreement, prompting Stolt to turn over a series of incriminating documents to DOJ attorneys, waiving, in the process, attorney-client privilege. Four months after entering the agreement, DOJ notified Stolt it was suspending the government’s obligations under the agreement because Stolt had misrepresented the termination date of its own anticompetitive practices. In 2004, the DOJ announced its intention to indict Stolt. Stolt sued to enjoin, contending it deserved an evidentiary hearing on the DOJ’s claims prior to indictment.
The government argues that its leniency agreements do not offer immunity from indictment. As the Chamber of Commerce’s amicus brief in support of Stolt’s petition points out, that’s rather different from the representations DOJ has used to induce corporate cooperation:

The [DOJ Antitrust] Division defines “leniency” as “not charging such a firm criminally for the activity being reported” … The Antitrust Division’s Grand Jury Practice Manual expressly states that the term of art “lenient treatment” “means not indicting such a firm.” … . Representatives of the Antitrust Division have described the Leniency Policy as “a complete pass from criminal prosecution or total immunity for a company and its cooperating employees,” and have observed that “ … the grant of amnesty is certain and is not subject to the exercise of prosecutorial discretion.”

Even so, Stolt’s case faces a number of barriers: (1) the settled rule that due process does not require a pre-indictment hearing on breaches of plea agreements entered by natural persons, coupled with (2) the fact that courts (wrongly, in my view) have refused to extend Fifth Amendment protection to a corporate entity’s interests against self-incrimination. For more, see this pro-government article on the case.

It’s questionable, though, whether ordinary plea agreements are an exact analogy to indictment of a corporate entity, since indictment can literally destroy companies as a going concern: witness Arthur Andersen, which melted down upon indictment, not conviction. As such, the corporate interests at stake here arguably far greater, from a due process standpoint, than a natural person’s interests at the similar stage of proceedings.

Even so, I hold out little hope for Supreme Court attention: It has already rejected two motions to stay the Third Circuit’s order. Moreover, judicial tolerance for misrepresentation in the context of prosecutorial bargaining is, unfortunately, both wide and deep—and, alas, likely to be wider and deeper in the corporate white collar context. Cf. Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37 (In the criminal plea bargain, “[d]efendants assume they are receiving substantial sentence reductions in exchange for their guilty pleas. This benefit is often more illusory than real… . The prosecutor’s recommendations, which appear attractive compared to maximum possible sentences, may in fact only correspond with the court’s typical sentencing practices… . [L]ike parties victimized by unconscionable contracts, [defendants] do not understand the terms of the bargain.”).

Was Lt. Cmdr. Charles Swift Too Zealous?

One of the nagging questions about the use of military tribunals has been the role of military defense counsel. If military lawyers report to Defense Secretary Donald Rumsfeld and President Bush (and they do), how can they zealously defend the legal rights of a person that the President has already declared an “enemy combatant” who must be punished for war crimes? Isn’t that a classic conflict of interest? The response has been that the defense counsel for these tribunals would not be under any “command influence.”

Lt. Cmdr. Charles Swift was among the first group of military lawyers that were assigned to represent prisoners facing war crimes charges at Guantanamo. As it happened, Swift’s client, Salim Hamdan, was selected to be the first prisoner that would go before the new military tribunals.

Swift promptly challenged the legality of the commission system–and took the case all the way to the Supreme Court and prevailed. Two weeks after his high court victory, the Navy informed Swift that under its “up-or-out” promotion system, he must leave the Navy.

It is a bit peculiar for the Navy not to retain and promote Swift. After all, Swift was recently named by the National Law Journal as among the nation’s top 100 lawyers. When the tribunals were first proposed, the argument was “we have to do this because otherwise Johnnie Cochran will enter the picture and muck everything up.” Now it seems the feds can’t have Charlie Swifts either.

Lt. Cmdr. Swift participated in a debate here at Cato on military tribunals last March. To view that debate, go here. Swift’s co-counsel in the Hamdan case was Georgetown University law professor Neal Katyal. And Prof. Katyal summarized his critique of the tribunal system in this article (pdf) in the Cato Supreme Court Review.