Topic: Law and Civil Liberties

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.

Andrew Sullivan in Multimedia

Andrew Sullivan gave a cogent and provocative speech this week at Cato based on his new book The Conservative Soul: How We Lost It, How to Get It Back. Prodded by a critique from David Brooks, he sharpened and clarified his argument during the question-and-answer session. Together, Sullivan and Brooks produced the kind of vigorous and intelligent discussion that think tanks strive for. You can catch the debate in RealAudio, RealVideo, or MP3 here.

Or if you prefer shorter bites on YouTube, you can find the first part of Andrew’s opening remarks here, the second part here, a closing back-and-forth with Brooks on conservatism, limited government, and the failure of the 1994 Republican Revolution here, and a short colloquy on same-sex marriage here. Finally, watch for the whole thing to appear on C-SPAN’s Book TV soon.

Harvard Lawyers Soon to Know Even Less

I’m fond of my law school (which wasn’t Harvard) and proud of having gotten a legal education, but I am keenly aware of what they didn’t tell me in school. My training was noticably light on constitutional doctrines like separation of powers and federalism — protections of liberty as important as the Bill of Rights. (I had to go and learn them myself. Got a little help from an outfit called the Cato Institute and papers like this one.)

Indeed, I recall a college pre-law class where I was taught the “swirl cake” theory of federalism. ”Sure, there are layers of government, but they mix and overlap in mysterious ways.” Utter claptrap. ”Swirl cake” federalism obscures the workings of government from the people, allows politicians to avoid accountability, and fertilizes the growth of over-large government at every level.

Now comes news (via the Volokh Conspiracy) that Harvard is going to “overhaul” the education first-year law students get. Rather than basics like contracts, torts, property, civil procedure, and criminal law, they’ll learn such things as policy and international law.

In other words, Harvard-trained lawyers will know more about politics and less about law. A step backward for the legal profession and probably for many Harvard lawyers themselves. 

As a law review editor-in-chief, I was aware that many top journals had wandered away from doctrinal work that actually advances law. Maybe the whole legal academy is following suit.

The Weaknesses of Watch-Listing

“Watch-listing” — the practice of putting bad people’s names on a list and treating them differently at places like airports — is fraught with difficulty. 

As to sophisticated threats, it’s a Maginot line. Easy to evade, it provides no protection against people who haven’t yet done anything wrong, who haven’t come to the attention of security officials, or who have adopted an alias. Terrorist planners are nothing more than inconvenienced by having to use people with “clean” records.

Paying to inconvenience any such terrorists are (taxpayers, of course, and) all the people wrongly treated as suspects because they have the same or similar names as listed people. 

On its website, CBS News is previewing its upcoming 60 Minutes story on watch-listing, and they’ve assembled a large group of Robert Johnsons to attest to their experience with watch-listing. They share the same name as a Robert Johnson that someone deemed appropriate to put on a list.

Watch-listing has a deeper flaw, though.  It does not fit with our system of law enforcement.

In the U.S., people who have done something wrong are supposed to be arrested, taken to court and charged, then permitted to contest the accusation. If they are found guilty, they pay money or serve time in jail. 

Watch-listing follows no similarly familiar pattern. Law enforcement or national security personnel place a person on a list and then, wherever that list is used, treat the person (and other people with the same name) differently, stopping them, interrogating them, searching them, or whatever the case may be. This unilateral process is alien to our legal system.

Rather than watch-listing, people who are genuinely suspected of being criminals or terrorists should be sought, captured, charged, tried, and, if convicted, sentenced.  Watch-listing allows law enforcement to be very active and intrusive without actually doing what it takes to protect against crime and terrorist acts.  In Identity Crisis, I wrote that ”watch listing and identification checking [are] like posting a most-wanted list at a post office and then waiting for criminals to come to the post office.”

At the national border, watch-listing must be used — deftly — because we cannot reach wrongdoers worldwide. Those watch-lists allow us to be vigilant against bad people who may arrive on our shores. Domestically, though — in our free country — the practice should end.

Extremism in Defense of Liberty

Michael Cannon, Mike Tanner, and other libertarian health care gurus may appreciate this.  I recently came across an intriguing quote by Founding Father Benjamin Rush, surgeon general of the Continental Army and signer of the Declaration of Independence.  So I did what everyone does these days and went to Wikipedia.  There I learned that:

Rush believed that Americans should enshrine the right to medical freedom in their Constitution, much as the right to freedom of religion is expressly guaranteed in that document.

Rush is reported to have argued that “Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship … to restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of Medical Science. All such laws are un-American and despotic and have no place in a Republic … The Constitution of this Republic should make special privilege for Medical Freedom as well as Religious Freedom.”

(Of course, if you read a little further, you learn that some of his medical theories were not so hot). 

Rush was also a rabid antimilitarist who proposed in 1792 that two captions be painted “over the portals of the Department of War”: “An office for butchering the human species” and “A Widow and Orphan making office”–though that’s an idea that would probably be even less popular today.