Topic: Law and Civil Liberties

Lamont’s Victory Exposes the True Nature of Campaign Finance “Reform”

There is not a line in McCain-Feingold that isn’t designed to protect incumbents. The so-called Bipartisan Campaign Reform Act makes it a crime to even mention the name of a candidate for federal office in a radio or television ad within 60 days of a general election. No criticizing incumbents! But the worst part of these laws came with the 1974 Amendments to the Federal Election Campaign Act, which instituted a $1000 contribution limit to candidates running for federal office (now slightly more than $2000, but less in real terms than the ’74 limits). Incumbents have earmarks to pass around and large mailing lists. Challengers do not. Advantage, incumbents.

Ned Lamont’s remarkable victory over three-term incumbent Sen. Joe Lieberman yesterday exposes the true nature of contribution limits. They aren’t about the “appearance of corruption.” They’re about preventing a challenger from having a snowball’s chance in hell of winning. The one “loophole” the Supremes created with their incoherent 1976 decision in Buckley v. Valeo was that candidates have rights the rest of us don’t have. Apparently, they can’t be corrupted by their own money, so there are no limits on what they can spend on their own campaigns.

More than 60 percent of Ned’s campaign expenditures came from Ned. Without Ned, Ned loses. In fact, no political observer thought any candidate dependent on a $2000 contribution limit had any kind of chance of ousting Lieberman. Ned was a very poor candidate. Inarticulate with zero charisma. But by spending his own money he enfranchised the Democrats of Connecticut who otherwise, given the contribution limits, were disenfranchised. The Democrats in Connecticut hate the war in Iraq, Lieberman has rather energetically endorsed it. Yet the federal election laws would have assured Lieberman reelection were it not for the “loophole.”

This anti-war election is directly analogous to my late friend Gene McCarthy’s race for the presidency in 1968. Gene used six-figure contributions from wealthy liberals like Stewart Mott who opposed the war in Vietnam to fund a campaign that ousted a sitting president from his own party. Gene often said that had the ’74 amendments to the FECA been in place in ’68, he would not have run. Campaign finance laws should not have the power to change American history. But they do. Give everyone the “loophole” of being able to spend as much of their own money to promote their political beliefs and we’ll throw a remarkable number of incumbents out of office. And with good candidates instead of bumbling millionaires.

Fear Is the Health of the State

James Fallows has an important–and brave–piece in the new Atlantic Monthly. Important because it reports the underreported good news in the war on terror: we’re winning. Indeed, after interviewing some 60 leading terrorism analysts while researching the article, Fallows has concluded that we’ve won. And the article is brave because one subway bombing while this issue’s on the stands and Fallows’s name might become the punchline to a thousand bitter jokes about pollyannaish predictions.

But if and when another attack happens, it won’t disprove Fallows’s point: we do not now, if we ever did, face an existential threat from the likes of Al Qaeda. As he puts it, “terrorists, through their own efforts, can damage, but not destroy us. Their real destructive power lies in what they can provoke us to do.” If fear, not reason, governs our reaction to terrorism, then Al Qaeda can provoke us into launching unnecessary wars and abandoning the constitutional protections we cherish. If we proclaim this conflict World War III (or IV–the hawks appear divided on this point, if on little else), then certain consequences follow for the American constitutional order. Which is one reason why Fallows urges the abandonment of the war metaphor.

Of course, Al Qaeda is a threat that should be taken very seriously–in some ways, more seriously than the adminstration has in the past. But for nearly five years, too much of the public debate over foreign threats has been dominated by breathless hysteria. The soundbite “the Constitution is not a suicide pact” has become the tell-it-to-the-hand of constitutional debate, as if it is a given that unless we gut the document, we will be committing national suicide. Peace and liberty don’t do well in an atmosphere of panic. Fallows’s calm, sober optimism serves as a useful corrective.

More on Jesse Lee Williams, Jr.

Yesterday, I mentioned the horrific case of Jesse Lee Williams, Jr., who was beaten to death while in police custody in Harrison County, Mississippi.  I noted that six months after Harrison’s death, there had yet to be any movement toward justice for the police deputies who beat him.

As it turns out, there was some movement yesterday.  According to the Biloxi Sun Herald, one of the deputies who participated in the beating has confessed to federal prosecutors, and as part of a plea, has conceded a long history of abuse at the county jail.  An arrest of Deputy Ryan Teel, who is thought to have inflicted the brunt of the beating, should soon follow.

This is certainly a positive development, and it will be interesting to see how Teel is ultimately charged. 

But as noted, there is a long record of reported abuse at the Harrison County jail house.  Reports of inmate beatings have circulated for months, not just from inmates themselves, but from other officers from other departments, and from other witnesses.  Nothing was done.  Encouraging as yesterday’s news was, it doesn’t undermine the criticism that earlier beatings went unaddressed, that it took a homicide to rally any real accountability, and that even then, the first signs of justice have appeared only after six months, and only after involvement from federal investigators.

As the Sun Herald noted in an editorial on the case last month, violent crimes not perpetrated by police officers seem to move through the criminal justice system quite a bit more swiftly.

Scalia’s New Police Professionalism

In his odd opinion in the Hudson v. Michigan case, Supreme Court Justice Antonin Scalia dismissed the exclusionary rule as an effective remedy when police conduct an illegal no-knock raid because, Scalia argued, police departments across the country have implemented better internal review procedures and oversight functions to deal with officer misconduct. In making that argument, Scalia went so far as to cite the work of respected criminologist Prof. Sam Walker, who later asserted that Scalia had misappropriated his work.

A scan of recent headlines suggests that when it comes to holding police accountable for botched raids, excessive force, and misconduct, Scalia’s “new professionalism” is nowhere to be found. A few examples:

• Yesterday marked the one-year anniversary of the SWAT raid on Anthony Diotaiuto, a Florida man shot and killed during an early-morning raid. The man’s bullet-riddled body was found in a bedroom closet. Police found all of an ounce of marijuana, and witnesses say they made no announcement before entering, as required by Florida law (police insist they announced). Diotaiuto’s death is the lead case in the introduction to my recent paper on paramilitary police raids. Gun rights advocates may want to take note: Diotaiuto’s possession of a legal conceal-carry permit was cited as a “major factor” in the police department’s decision to use a SWAT team and forced entry.

One year later, law enforcement officials still refuse to share any information about the raid with the media or with lawyers for Diotaiuto’s family. They’ve been met with stony silence when they’ve attempted to access copies of the police report, the internal police investigation, or Diotaiuto’s autopsy. The grand jury investigating the case has been cancelled twice. The internal police investigation apparently cleared the raiding officers of any wrongdoing, but the details are still under wraps.

• It’s been six months since the Fairfax, Va., shooting death of local optometrist Salvatore Culosi, also during a SWAT raid. Culosi was being investigated for placing wagers on sporting events. Once again, Culosi’s family has found only silence and resistance when they’ve attempted to gain access to documents related to internal police investigations into their son’s death. County and police officials won’t even give Culosi’s family a timetable as to when the results of the investigative report they were promised might be available. Fairfax County prosecutor Robert Horan announced last spring that he wouldn’t seek charges against the officer who wrongly shot and killed Culosi, though that’s hardly a surprise. Horan hasn’t brought charges against a police officer a single time in his 40 years on the job.

• 51-year-old Kenneth Jamar, a semi-invalid with severe gout and a pacemaker, was shot several times and nearly killed in a SWAT raid on his home last June. Jamar, asleep and behind two doors when police announced themselves, was holding a gun when the SWAT team kicked down his bedroom door. Police were apparently looking for Jamar’s nephew. Despite the fact that the address on the search warrant was incorrect (the address listed was that of the suspect’s father), police insisted that the raid on Jamar’s home was legal and that his home was the home they’d intended to raid all along.

Last week, an internal review cleared the raiding officers of all wrongdoing and blamed Jamar — who is still in the hospital recovering from the gunshots — for the entire incident. Despite the fact that he could barely walk, was hard of hearing, and not suspected of any crime, a police spokesman insisted, “If he had not done what he did, he wouldn’t have been shot,” and that, “He was only shot because he did not comply with the police officers commands.”

So, officials decide to use a SWAT team and forced entry on a sick man not suspected of any crime and whose only “transgression” was to be related to a drug suspected, somehow mistakenly have the address of the suspect’s father on the search warrant, shoot the man multiple times when he mistakes them for criminal intruders, then announce that the entire episode is the victim’s fault.

• Last February, deputies in Harrison County, Miss., beat a man to death while he was in their custody. Jesse Lee Williams, Jr. was brought in on misdemeanor charges, savagely beaten in a holding cell, then died after being belatedly transported to the hospital. The entire incident was witnessed by several people and captured on at least four jailhouse video cameras.

Six months later, there have been no arrests in Williams’ death. Lawyers for Williams’ estate and the media have been denied access to investigatory documents related to his death, including the videotaped accounts of the beating. Their civil suit has been postponed by a judge, in deference to the criminal investigation, which continues at a sloth’s pace. The officer who is said to have led the beating has been fired, but he hasn’t been arrested. Officers who assisted in the beating are still on the job.

In all of the above cases, one can’t help but wonder if the wheels of justice would be turning as slowly if the victim were a law enforcement officer and the assailant a civilian, instead of the other way around.

How Did You Like the Cybercrime Treaty Debate?

Perhaps you weren’t aware of the Senate’s debate over the cybercrime treaty. You would be like most people. The Senate quietly approved the cybercrime treaty yesterday.

The treaty is the product of years of diligent work among governments’ law enforcement departments to increase their collaboration. It lacks a dual criminality requirement, so Americans may be investigated in the United States for things that are not crimes here. And it applies not just to “cyber” crimes but to digital evidence of any crime, so foreign governments now may begin using U.S. law enforcement to help them gather evidence in all kinds of cases.

 But you already knew that if you were following the debate. You were following the debate, weren’t you?

ID-Based Security Is Broken - and Can’t Be Fixed

The Government Accountability Office testified to the Senate Finance Committee today that investigators were easily able to pass through borders using fake documents. Indeed, sometimes documents were not checked at all.

“This vulnerability potentially allows terrorists or others involved in criminal activity to pass freely into the United States from Canada or Mexico with little or no chance of being detected.”

That’s true, but shoring up that vulnerability would add little security while devastating trade and commerce at the border.

Identity-based security works by comparing the identity of someone to their background and determining how to treat them based on that. To start, you need accurate identity information. That’s not easy to come by from people who are trying to defeat your identity system.

Here’s a schematic of how identification cards work from my book Identity Crisis.

As you can see, proof of identity involves three steps: Info goes from the person to the card issuer; info goes from the issuer to the verifier via the card; and the verifier checks to make sure the person and the card match.

Each of these steps is a point of weakness. Let’s take them in reverse order:

Obviously, as the GAO found, if nobody looks at the ID card, the “verifier check” can’t be done and the system fails. If the verifier is careless, the system will also fail. This weakness can be fixed with machine-read biometrics, but that is time-consuming and it typically subjects everyone to monitoring, tracking, surveillance – whatever you prefer to call it.

If the card can be forged or altered, this compromises card security, the second point of weakness in the process. Weakness in card security (non-obvious forgery) is what GAO sought to expose when it stumbled across the fact that border agents weren’t checking IDs at all. Card security can also be fixed various ways, though the best, such as encryption, will also tend to increase monitoring, tracking, and surveillance of every card-holder.

The first step is the hardest by far to fix: getting accurate information about people onto cards. For anyone wanting to defeat the current U.S. identification system, there is a substantial trade in documents that are false but good enough to fool Department of Motor Vehicle employees into issuing drivers’ licenses and cards. Criminals also regularly use the option of corrupting DMV employees to procure false documents. Can this problem be curtailed? Yes. Solved? No.

For the sake of argument, let’s fix all these things with a cradle-to-grave, government-mandated, biometric tracking system. Enough to make even the irreligious think “mark of the beast.” Even then, we will not have effective security against serious criminals and terrorists. The greatest weakness of identification-based security remains.

Knowing who a person is does not reveal what they think or what they plan to do. Examples are legion in terrorism, and routine in crime, of people with no record of wrongdoing being the ones who act.

For example, Al Qaeda selected operatives for the 9/11 attacks who had no known records of involvement in terrorism. (See 9/11 Commission report, page 234.) It was operating in a mode to defeat watch-listing well before the spasm of watch-listing that underlies identification-checks like the ones GAO has found so flawed.

If we were to have a comprehensive, mandatory, biometric identification system, it would help find bad people after they are identified, but do little to secure against attackers who are not already known. Al Qaeda planners would have to continue factoring in a risk they have already accounted for.

And having such a system should be a big “if.” Subjecting all Americans to increased monitoring, surveillance, and tracking, then delaying their lawful trade and travel at the borders, would do a lot of damage to liberty and commerce. It would provide only a tiny margin of security – almost no margin against sophisticated threats.