Topic: Law and Civil Liberties

Bureaucracy and Lost Privacy

In my book Identity Crisis: How Identification is Overused and Misunderstood, I argue that identification is required of us too often by both corporations and government as we go about our business. I also do my best to articulate the reasons why this is bad, and how we can escape it.

With my senses tuned to the overuse of identification, I’m keenly aware of the osmotic process by which institutions soak up information about us, pass it around, and use it in ways we may not prefer.

Here’s an example from real life: I have recently spoken at several conferences dealing with identification, identity, financial risk management, and the like. When the time came to get reimbursement for my travel, one of the conference organizers asked me to give my Social Security Number if I was going to rely on faxed receipts for reimbursement.

The e-mail thread below shows how complex IRS regulations require financial administrators in the corporate world to over-comply, collecting (and possibly filing with the government) information that neither entity needs.

This is bureaucracy in action (both public and private), and it’s the constant drip, drip, drip of privacy going away.

[Names have been changed to protect the guilty.]

*********************

—–Original Message—–

From: katie [at] conference [dot] org

Sent: Fri 9/29/2006 10:19 AM

To: Jim Harper

Subject: W-9 Forms Needed

Hello Jim,

Thank you so much for sending over your receipts.

Since you did not send me actual receipts, I need you to fill out this W-9 form and fax it back ASAP.

Thanks again,

-Katie

Katie Folsom

Conference Specialist

*****************************

Are you sure? This is reimbursement for travel, not income. And even if it were income, I believe the amount in question here would not even require a W-9. (Also, I’m traveling through Sunday without access to a printer or fax. ;-)

Having suffered through my talk, you probably understand that I don’t needlessly share information with the government or with organizations who are going to needlessly share with the government.

If you could politely ask your accounting folks to show where the law or IRS instructions require them to have my SSN to reimburse me for travel, I would appreciate it. (I’m not a tax law expert, just knowledgeable enough to be dangerous/annoying.) If they can’t show that they need this information, they don’t need it.

Thanks! Sorry for being prickly, but it’s my job.

Jim

Jim Harper

Director of Information Policy Studies

The Cato Institute

***************************

—–Original Message—–

From: elizabeth [at] conference [dot] org

Sent: Friday, September 29, 2006 11:32 AM

To: Jim Harper

Cc: Katie [at] conference [dot] org

Subject: Re: Fw: W-9 Forms Needed

Hi Jim,

While I understand your concern regarding needlessly sharing information, IRS regulations specify that a W-9 must be filled out whenever receiving income from a company. Please see the “Purpose of Form” section on the front of the W-9. Your travel reimbursement is technically considered income.

One way around this (to avoid having to fill a W-9 out), however, is to send us all of you Original receipts and get reimbursed on those. Basically, in layman’s terms, the IRS is trying to avoid “double-dipping”. If we reimburse someone for receipt copies, that person can then claim/deduct the originals on their own personal/business taxes. The W-9 form is the IRS’ tracking solution to this.

Please let Katie what you intend to do, so she can be on the lookout for either your W-9 form or your original receipts in the mail (sent with tracking information for your protection). I hope this cleared things up a bit.

Thank you.

Elizabeth

Elizabeth LaFontaine

Senior Accountant

*********************

“Jim Harper”

10/03/2006 06:04 PM

To elizabeth [at] conference [dot] org

cc Katie [at] conference [dot] org

Subject RE: Fw: W-9 Forms Needed

Hi Elizabeth –

Sorry for the delay. I’ve been traveling. Again.

As I understand it (and I have double-checked), W-9s are needed when you are going to file a 1099. If you believe that there is a requirement to file a 1099 on reimbursement of my travel expenses, could you please tell me where that is? Which 1099 would you file? If you think that it’s the 1099-MISC, please note that the threshold amount for filing the 1099-MISC is $600 in income.

And I have strong doubts that this is income. If you were to file a 1099 dealing with reimbursement for travel expenses, the IRS would be looking for it on my 1040, and I have never included travel expenses on a 1040.

Let me apologize for being a stickler about this, but many administrators believe they have to collect SSNs when they do not. It may be that you are over-collecting SSNs and possibly even filing forms you don’t need to.

If you can point me to documents showing that I’m mistaken, I welcome being corrected. But unless you do, I’m pretty sure that you don’t need a W-9 and can issue a check to me.

Thanks!

Jim

Jim Harper

Director of Information Policy Studies

The Cato Institute

************************

Hi Jim,

As I stated in my previous email, you do not need to fill out a W-9 if you do not wish to. Simply send all of your original receipts to Katie so she can process your check. Unfortunately, that is the only way you will be reimbursed. Sorry for any inconvenience, but those are the policies we strictly abide by and they in no way infringe upon any reservations you may have about providing information you don’t want to provide.

Please let Katie know when she can be expecting your receipts in the mail. We will reimburse you $4.55 for Priority mail with Delivery Confirmation if you’d like.

Regards,

Elizabeth

Elizabeth LaFontaine

Senior Accountant

Is the Military Commission Act Constitutional?

Jack Balkin and Jonathan Hafetz have thoughts here and here.

There are a number of complicated questions to unpack:

1. Does the Constitution guarantee some minimum amount of habeas protection? Justice Scalia says no in his dissent in INS v. St. Cyr. Others say yes.

2. If it does require some minimum habeas protection, what does the constitutional minimum look like? The 1789 version of common law habeas that applied in the King’s Bench? Or something more robust?

3. Does constitutional habeas, if it exists, extend to aliens?

4. When can Congress suspend constitutional habeas and for how long?

5. Relatedly, does due process inform what constitutes “constitutional habeas” and, at the same time, limit Congress’s suspension power?

Balkin avoids addressing due process and equal protection arguments against the MCA, noting they require much more heavy lifting than a blog post allows. I’m undeterred by his common sense, however, and below I raise a set of preliminary questions about these claims:

1. Equal Protection. One argument against the MCA’s suspension provisions is that they apply to aliens, but not to American citizens, thereby violating the aliens’ Fifth Amendment equal protection rights. However, its an open question whether equal protection applies extraterritorially to nonresident aliens. It would odd if it did, since foreign policy by nature must prefer and protect the interests of citizens at the expense of those beyond our borders.

That intuition is confirmed by case law. In the Insular Cases, which arose out of legal challenges to Congress’s disposition of conquered territories acquired in the Spanish-American War, Justice Brown said that “the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be.”

To be sure, the Court suggested that there “are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.” And in Rasul v. Bush, the plurality indirectly referred to this dictum (by citing Justice Kennedy’s reliance on it in his United States v. Verdugo-Urquidez concurrence), suggesting the plurality believed some fundamental unenumerated constitutional rights may apply to Guantanamo.

Even so, by recognizing that Congress is entitled to prescribe the “status” of noncitizens in treaty-acquired territory, the Insular Cases imply that heightened equal protection review (i.e. strict scrutiny)—which presumes that classifications are strongly disfavored—doesn’t apply in Guantanamo. Moreover, the Insular Cases’ emphasis on the rights of “inhabitants” suggests that those rights attach not to territory but to pre-annexation residents of the territories—suggesting that even minimum “rational basis” equal protection principles might not apply to those who merely transit through or are forcibly detained in Guantanamo, but who have not voluntarily chosen to reside there. Finally, past Courts have repeatedly cast doubt on claims that the Constitution extends to nonresident enemy aliens in In re Yamashita and Johnson v. Eisentrager.

The equal protection claims of lawful resident aliens are equally problematic. Beginning with the Alien Enemy Act of 1798, Congress has granted resident aliens far fewer rights against executive detention than citizens. And, at a minimum, any equal protection claim must contend with the Court’s own haphazard approach to strict scrutiny of resident alienage classifications, which does not apply to deportation proceedings or to certain “constitutional prerogatives” of a democratic government (see, e.g., Sugarman v. Dougall), among which includes the conduct of foreign relations. See Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952) (“any policy toward aliens is vitally and intricately interwoven with … the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”).

2. Due Process. Another argument against the MCA is that it violates due process by denying persons an independent pre-trial judicial hearing determining whether they are a citizen or an alien.

In Verdugo, Justice Kennedy, writing in concurrence, suggested that due process is among the principles of “natural justice” that apply to aliens abroad. After Yamashita and Eisentrager, that may be dubious when applied to alien prisoners of war. But Hamdi v. Rumsfeld held that due process also requires that a “citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” That may imply that not only citizen-detainees but detainees asserting citizenship status have a due process right to an independent hearing on their classification.

The force of this argument, though, is undercut by the fact that the Hamdi Court took care to underscore that habeas hadn’t been suspended before reaching the due process claim—suggesting, in turn, that the Court believed suspension authorizes detention without any process.

3. The Non-punishment/Punishment Distinction. While it grants limited appellate review of Combatant Status Review Tribunal’s determination of status, the MCA and Detainee Treatment Act forbid any review of the CSRT’s factual findings, which the MCA purports to make conclusive.

It might be argued that while the Suspension Clause authorizes Congress to suspend challenges by citizens or aliens to detention (the issue in Hamdi), a remedy must remain available to challenge the threshold factual determinations of who may be subject to military trial. The theory is that the Suspension Clause allows the executive to preventatively detain people without judicial process—but not to put them on trial without some minimum process.

The theory finds some support in Ex parte Milligan, which held that suspension doesn’t entitle the executive to try and punish citizens in an unlawful way. See, e.g., Ex parte Milligan, 71 U.S. 2, 125 (1868) (“Unquestionably, there is then an exigency which demands that the government, if it should see fit … should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law.”). See also Hamdi v. Rumsfeld, 542 U.S. 507, 593 (2004) (Thomas, J., dissenting) (the “punishment-nonpunishment distinction harmonizes” the suspension precedents). Milligan recognizes, in effect, that Congress can’t suspend the use of a habeas to challenge certain features of executive trials.

However, Quirin, Yamashita, and Eisentrager have subsequently limited Milligan’s application to enemy combatants, by rejecting claims that enemy alien combatants and enemy citizen combatants are generally protected by the Bill of Rights or federal statutory law. However, a narrow bit of Milligan may survive. The combatants in Quirin and Eisentrager admitted they fell within the class of individuals that the political branches had determined to try; instead, they challenged the constitutionality of the trials themselves. Hence these cases don’t squarely extinguish a claim that due process requires a minimal, non-suspendable, habeas review of facts on which jurisdiction of military commission trials are premised.

To sum up, its arguable, based on a synthesis of Milligan and subsequent cases, that Congress (1) cannot limit detainee’s use habeas to challenge his citizenship status when—and only when—(2) the detainee is to be put on trial before a military court, and (3) citizenship of the detainee precludes the military court’s legal jurisdiction to try and punish. This argument is probably best framed as a due process right that belongs to citizens, that informs the constitutional core of habeas, and that imposes an external limit on Congress’s suspension power.

The claim is complicated a number of questions, including about how to define the constitutional core of habeas. Some argue that core extends no farther than eighteenth century common law practice, which forbid courts from determining the facts giving rise to detention. See, e.g., INS v. St. Cyr, 533 U.S. 289, 343 (2001) (Scalia, J., dissenting) (“in this country, until passage of the Habeas Corpus Act of 1867, and in England, the longstanding rule had been that the truth of the custodian’s return could not be controverted”). If that were true, then Milligan was wrong and the MCA—which permits detainees to appeal of pure questions of law to the D.C. Circuit–does not “suspend” the constitutional “core” of habeas at all.

The upshot: The Military Commission Act is not patently unconstitutional—but it is hardly on uncontrovertible constitutional footing, either.

Privacy vs. Justice

On Monday, the U.S. Supreme Court denied Dr. Bernard Rottschaefer’s appeal for a new trial, an appeal based on clear, post-conviction evidence that the prosecution’s star witness lied under oath.

That’s unfortunate, but expected.

A woman named Jennifer Riggle testified in the criminal trial that Dr. Rottschaefer gave her OxyContin and Xanax prescriptions in exchange for oral sex. Her testimony took a hit when, after the trial, her boyfriend was released from prison, and produced dozens of letters in which Riggle admitted to him that she had made up the oral sex stories and lied under oath in exchange for leniency with respect to her own drug charges. Despite those dozens of letters, the U.S. attorney who prosecuted Rottschaefer – Mary Beth Buchanan – refused to drop or lessen the charges against him, and to date has also refused to pursue perjury charges against her star witness.

But the case isn’t over just yet. The four other women who testified at Dr. Rottschaefer’s trial have since launched civil suits against him, and all of them have given testimony during discovery that directly contradicts their testimony at trial.

The civil trial’s discovery process revealed that one woman was getting from another doctor the same medication Dr. Rottschaefer was convicted of prescribing to her – at several times the dosage Dr. Rottschaefer was prescribing. That doctor was not prosecuted, casting some doubt on the prosecution’s claim that Rottschaefer had no “legitimate medical” rationale to prescribe the medications. Others testified that they did, in fact, have some ailments that would necessitate the prescscriptions Dr. Rotschaefer was writing.

None of this came out during the criminal trial. Taken together, the testimony of these women shows a clear case of doctor-shopping and deception, and shows that Dr. Rottschaefer – like so many of the doctors the DEA has brought down – was guilty at worst of being a poor judge of character. Hardly the kind of thing for which you put someone away for 25 years.

It’s also clear that all of these women were facing their own drug charges, charges that were reduced based on their testimony against Dr. Rottschaefer.

One particularly outrageous aspect of these cases is the way HIPAA’s privacy provisions tie the hands of defense attorneys. We’re only now finding out about these women’s histories with other doctors because defense attorneys were prevented by HIPAA from knowing of or viewing their medical records. The prosecution was free to make spurious claims to the jury – claims they knew or should have known were inaccurate – but the defense couldn’t look over the very medical records that would have rebutted many those spurious charges.

Of course, if the prosecution knew of potentially exculpatory evidence – that is, their witnesses’ dealings with other doctors – and didn’t disclose it to the defense, Ms. Buchanan’s office might soon be forced to answer some difficult questions about prosecutorial misconduct.

Medical privacy is important, of course. But if the DEA is going to continue to go after these doctors with charges that hinge on the medical histories of some of their witnesses, defendant doctors ought to be able to peruse those histories for evidence that could help prove their innocence.

Posner on Humanitarian Intervention

Below Andrew criticizes the claim that our Iraq intervention has failed because it has increased the risk of terrorist attacks.  While I, as a caveman lawyer, have little expertise on matters of foreign relations, I am an expert on what other lawyers have to say about foreign relations. 

Here, Chicago law professor Eric Posner (and son of Richard Posner) argues that the Iraq war has revealed a different trade-off:  the uncertain payoff of humanitarian military intervention.

Sending Up Security

People are highly tuned risk managers. Daily, we make decision about risky things like crossing streets. To do so, we analyze the speed and density of traffic, light conditions, our own physical skills, and myriad other factors to determine whether to cross in the middle of a block or at a controlled intersection.

Five years since 9/11, people are getting better at assessing the risks of terrorist acts. And people are growing increasingly skeptical of the risk choices being made for them by the Department of Homeland Security. The evidence? Their willingness to see security lampooned.

The writers at The Onion are undoubtedly finding a good reception for this send-up of the Transportation Security Administration’s liquids rules.

And people are diverting themselves from their exasperation with airport security using this fun game

A basic indictment of government-provided security is in daily newspapers’ comic sections this morning. Syndicated cartoon Bizarro by Dan Piraro is titled “Orientation Seminar at Homeland Security.” It depicts a teacher at a chalkboard that says “Inconvenience = Security.” (Available online here early next month). 

The funny bone is a highly tuned instrument, and it’s showing the dissonance in air security today. 

Does the Military Commission Act Apply to U.S. Citizens?

Legal scholars are debating whether the Military Commission Act [MCA], passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think.

First: Under Sec. 948a(1) an unlawful enemy combatant is “(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents …; or (ii) a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal….” Use of the word “person” suggests that citizens may be detained as unlawful combatants.

But second: Sec. 7(a) denies habeas rights only to aliens. Thus, a citizen who is detained as an unlawful combatant would appear to have habeas rights to challenge his detention.

Moreover, third: Sec. 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” In other words, only non-citizens may be tried by a military commission. 

My conclusion:  A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.

Defending the Constitution

Republican Sen. Arlen Specter expects the Supreme Court to invalidate a law that he voted for:

Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions.

Don’t be surprised if one or two Supreme Court justices respond with something like this: “This is a grave matter and judges are ill-suited to make national security decisions and so I think it proper to defer to the considered judgment of elected representatives of the people in the Congress on this habeas corpus matter.” 

As I point out in this paper, too many people seem to think that the Constitution will somehow automatically check the government when it goes too far. Not so. The Constitution cannot enforce itself. This latest episode in anti-terrorism legislation shows that we have not broken out of a vicious political cycle and that’s a very bad indication of the political and legal trends in America.