Topic: Law and Civil Liberties

A Democratic Congress, Scary? Compared to What?

The office of House Majority Whip Roy Blunt (R-MO) has produced a document titled “Pelosi’s House.”  It is a list of 

out-of-the-mainstream bills introduced by Democratic Members [that] deserve particular attention because the principle [sic] advocates are the very individuals who would be in a position to schedule committee markups and move the legislation through the Congress should the Democrats take control. 

The list includes bills that would nationalize health care, create an adult diaper benefit under Medicare, reduce mandatory minimum sentences for crack cocaine, etc.

The list is less scary than its authors seem to think.  Reducing jail time for selling crack cocaine is actually a good idea.  And most of the bills have little support even among Democrats.  A bill that would nationalize health care has only 19 cosponsors, which is less than 10 percent of Democratic House members and less than 5 percent of the full House.

I mean really.  If the Democrats were to take control of the House, probably the worst they could do is add an expensive new prescription drug entitlement to Medicare. 

Oh, wait.  The Republicans already did that.  So the Democrats would have to shoot for something else, like a new adult diaper entitlement.  At least the GOP would go back to opposing such things.  Right?

O’Reilly Interviews Bush

Bill O’Reilly got an exclusive interview with President Bush recently. The second and third segments were the most interesting to me.

In the second segment, O’Reilly asks some pretty good questions about torture, such as: How can anyone make a judgment about your policy when it’s all kept secret? Bush repeats his point that the terrorists can’t be told. O’Reilly could have followed up with: “But it’s out there already, isn’t it?”

During the same segment, Bush says when his agents pick up people from the battlefield, he wants to know what they know. O’Reilly should have followed up with: “But to be clear, sir, when you say “battlefield,” you mean any person picked up anywhere, right? So if an American citizen is arrested in Chicago, you are saying that you can employ “tough tactics” against him just on your own say-so, right?

The third segment of the interview is about Iraq. Here Bush restates his case, as you would expect. Still interesting. He seems to believe that having a clearly stated goal is the key to victory. He has established the objective and he believes the finest military in the world can find a way to achieve it. But later Bush says something like ”ultimately, it is up the Iraqi people.” O’Reilly could have followed that up by saying something like: ”Yeah, but that means the Iraqi people might opt for an endless civil war instead of a peaceful political process, right? If they go that route, we get out, right?”

GOP Crime Record

This is the glistening new headquarters of the Bureau of Alcohol, Tobacco and Firearms:

IMHO, this is a fitting symbol of the GOP’s administration of the federal government.  When the Republicans took control of the Congress in 1995, there was talk of abolishing the ATF for its appalling role in the Waco incident. (For background, read this and/or watch this).  But the GOP “grew in office” as they say, and steadily expanded the budget of the ATF and then approved the construction of a fancy new headquarters.  There is still oversight, mind you.  The ATF director wanted a $65,000 conference table and the Bush administration put a stop to that.  Bush’s people cracked down and said “You guys have to make do with a $33,000 table!”

For an article about how ATF continues to run amok, go here.

For an article about the GOP’s criminal justice record over the past 10 years, go here.

Why the Controversy Will Continue

Good op-ed in today’s Washington Post entitled “The Unlearned Lessons of Abu Ghraib.”  The author, Christopher Graveline, was an Army JAG officer who participated in the prosecution of 10 soldiers for detainee abuse at the Abu Ghraib prison.  Graveline writes: 

President Bush has signed into law Congress’s latest attempt to clarify our country’s position on proper treatment of detainees and the boundaries of legitimate interrogation techniques. Unfortunately, this legislation demonstrates that both the administration and Congress have failed to learn important lessons from what Bush described as the “biggest mistake that’s happened so far” in Iraq: the detainee abuses at Abu Ghraib.

By dissociating potential criminal responsibility from overly aggressive interrogation practices that could be classified as “minor” breaches of the Geneva Conventions, and setting up a situation in which different interrogation practices can be used by our military and the CIA, our national leadership has ensured more abuse scandals. …

The new law grants too much latitude in an area where precision and oversight are critical. If confusion reigned in Washington during the past several weeks over whether waterboarding or other, “harsher” techniques would be permissible under the legislation, imagine the results when our agents and service members are faced with the same question halfway around the world and years removed from this debate – especially if the threat of criminal responsibility is gone.

To illustrate that point, compare Scenario A with Scenario B below.

Scenario A: This is a random misdeed by U.S. personnel and it is illegal.

In this scenario, the man under the hood is a prisoner in U.S. custody.  But this is a rogue operation against the prisoner that was not authorized by the president.  Incidents like this will be investigated–and whoever did this will face prosecution.

Scenario B: This is Long-time standing and it is permissible.

In this scenario, the man under the hood is also a prisoner in U.S. custody.  Long-time standing is an interrogation technique reportedly used by the CIA.  And President Bush says the Military Commission Act will revive the CIA program. Thus, if this tactic was indeed authorized by the president, there is no need for any investigation in this scenario.  The American interrogators were just doing their job.

This Washington Post editorial sums it up well.  President Bush alludes to “tough tactics,” but he will not publicly identify what will be done.  Bottom line: tough tactics will be used–and then there will be more media reports of torture, and then, in response, the administration will restate its opposition to torture.  The Military Commission Act has done little to clarify the rules and to settle the controversy surrounding the treatment of prisoners in U.S. custody.

Lemon Laws

My dad once told me that, when buying a car, check three boxes: (1) Do you need the car?  (2) Is the car too expensive?  (3) Does the car work?

This paternal wisdom is generally applicable not just to cars, but to all sorts of things–like the Virginia Marriage Amendment.  The Arnold and Porter memo that David linked to yesterday demonstrated that the vaguely worded amendment is destined to generate a great deal of costly litigation and may possibly surprise voters by curtailing contract and property rights of unmarried gay and straight couples.  As such, it’s a bit like an overpriced, poorly maintained 1966 Mustang–overly expensive, liable to break down, with a not-insignificant-risk it will explode on impact.

Here’s one more reason to oppose it, even if you are a committed foe of gay marriage:  There’s absolutely no need for it.  Opponents of gay marriage suggest the amendment is needed to defend against “out-of-control” state judges, who might impose gay marriage on the Virginia electorate from the bench, like the Massachusetts Supreme Judicial Court did (so the standard conservative story goes) in Goodridge v. Department of Public Health.

Yet, there’s virtually no risk that will happen in Virginia.  One, Virginia judges are elected by the reliably conservative state General Assembly, guaranteeing they will not stray very far from current enactable preferences of Virginia’s staunchly red-state voters.  Two, the Virginia Supreme Court has consistently interpreted the Virginia Constitution’s narrowly worded anti-discrimination provisions (I say narrowly, because the Virginia constitution does not include a general equal protection clause at all. See Boyd v. Bulala, 647 F. Supp. 781, 786 (W.D. Va. 1986) (“The Virginia Equal Protection Clause contains no equal protection clause as such”)) to provide “no more” protection than has been recognized by the U.S. Supreme Court under the U.S. Constitution’s Equal Protection Clause.  Wilkins v. West, 264 Va. 447, 467 (2002); Archer v. Mayes, 213 Va. 633, 638 (1973).

In this, Virginia’s constitutional precedents differ markedly from those of Massachusetts, where, prior to Goodridge, courts had long recognized that the broadly worded Massachusetts Constitution provides more protection for individual liberty than the federal Constitution. That means that if gay marriage is ever recognized in Virginia, it will be the U.S. Supreme Court and federal constitutional law that drive its recognition.  Under the Supremacy Clause, no state constitutional amendment can defend against that.

As a result, the Virginia Marriage Amendment can’t plausibly be justified as a defensive amendment.  To put it in my dad’s terms: its too expensive, it’s at risk of breaking down, and there’s no conceivable need for it.  A lemon all around.

Watch Your Libertarian Language

Colleges often have to decide what their rules are about language that offends people. Is a professor’s criticism of affirmative action offensive to black students? Is a gay-rights group’s advocacy offensive to Christian or morally conservative students? And people can debate how to weigh free speech versus a nurturing atmosphere in a particular college.

But Marquette University seems to have reached new heights, or depths, in what it considers offensive. A graduate student there posted on his office door a pithy quotation from humorist Dave Barry:

 “As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.”

A strong opinion, to be sure. One that I’d bet is shared by many but certainly not all Americans. Apparently Barry’s sentiment is not shared by the chairman of Marquette’s philosophy department, who took it upon himself to take down the quotation and sent a department email declaring it “patently offensive.”

Offensive to whom? Surely not to any of the usual identity groups, ethnic or religious or sexual-orientation or gender or whatever. Nor does it use the four-letter words that might be inappropriate for a public space. Perhaps it’s offensive to employees of the federal government, or to those who have a great deal of respect and admiration for the federal government. But one would think that at a university it falls within the parameters of debate. And while Dave Barry writes more effectively and memorably than most philosophers, his statement still qualifies as humor or political commentary or both.

Marquette is a private university and is thus free under the First Amendment to regulate speech as it chooses. But if libertarian jests are “patently offensive” and subject to censorship at Marquette, it might want to note that in a new paragraph of its academic freedom guidelines and perhaps in the catalog provided to prospective students.

Google Office vs. Government “Request”

TechCrunch is a terrific blog covering new Internet products and companies.  Edited by Michael Arrington, it’s a clearinghouse of information on ”Web 2.0” - the agglomeration of innovations that could take online life and business through their next leaps forward.

In this recent post, TechCrunch briefly assessed some concerns with Google’s office strategy.  Google has online offerings in the works that could substitute for the word processing and spreadsheet software on your computer - just like Gmail did with e-mail.

And just like Gmail, documents and information would remain on Google’s servers so they can be accessed anywhere.  This is a great convenience, but brings with it several problems, namely: 

The fact that unauthorized document access is a simple password guess or government “request” away already works against them. But the steady stream of minor security incidents we’ve seen (many very recently) can also hurt Google in the long run.

Arrington’s post goes on to highlight a series of small but significant security lapses at Google.  If Google wants companies and individuals to store sensitive data on their servers, they have to be pretty near perfect - or better than perfect.

Then there is government “request.” Arrington makes appropriate use of quotation marks to indicate irony.  Governments rarely “request” data in the true sense of that term.  Rather, they require its disclosure various ways - by warrant or subpoena, for example, by issuing “national security letters,” or by making a technical “request” that is backed by the implicit threat of more direct action or regulatory sanctions.

On resisting government demands for data, Google has been better than most - an awfully low hurdle.  It opposed a subpoena for data about users’ searches earlier this year.  But Google has a long way to go if it wants people to believe that leaving data in their hands does not provide easy (and secret) access to the government.  Indeed, thanks to the recently passed cybercrime treaty, doing so may well provide access to foreign governments, opening the door to corporate espionage and any number of other threats.

At a meeting of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee in San Francisco last July, I asked Google Associate General Counsel Nicole Wong what the company is doing about its ability to protect information from government “request,” given the sorry state of Fourth Amendment law with respect to personal information held by third parties.  Her answer, which I must summarize because the transcript is not yet online, amounted to “not much.”  (Eventually, the transcript should be linked from here.)

Google has issued a “me too” about an effort to invite regulation of itself.  That project is going nowhere, but if it did get off the ground, it would do nothing about government access to the information that Google holds for its customers. 

Government access to data is a big flaw in Google’s nascent effort to move into online productivity services.