Topic: Law and Civil Liberties

A Legacy of Bias

Last week on my personal weblog, I ran an excerpt from Dan Baum’s essential book Smoke and Mirrors about how the 1986 overdose death of Maryland University basketball star Len Bias led to the 1986 Anti-Drug Abuse Act. The act is arguably the most militant, draconian crime-fighting bill ever passed by Congress.

Much of Baum’s book is told from the point of view of Eric Sterling, a congressional staffer who helped write most of the 1980s drug laws, but who has since become a vocal opponent of those laws, and of the drug war in general.

Yesterday, Sterling and Julie Stewart of Families Against Mandatory Minimums had an op-ed in the Washington Post arguing that, sadly, the legacy of Bias’s death isn’t an end to the use of illicit drugs, but an exploding prison population, violence, and increased drug use — all caused not by Bias’s death, but by Congress’s overreation to it.

Chicago Tribune columnist Clarence Page covered similar ground this week.

A Footnote on Kelo

I’m still amused at conservatives who call the Kelo decision “activist” and make it an exhibit in their jihad against “activist” judges. See the House Republicans, the Alabama Policy Institute, or the American Conservative Union.

But the Kelo decision wasn’t wrong because the Court was activist. It was wrong because the Court failed to actively enforce the Constitution’s restrictions on government. As Richard Epstein wrote in a Wall Street Journal column, “Justice Stevens’s lamentable opinion was the polar opposite of judicial activism. Indeed, it represented a deadly form of judicial deference to legislative action that makes a mockery of both the text and purposes of the ‘Public Use’ Clause.”

Of course, just to complicate the matter, one could say that a court is activist when it finds powers for government that are nowhere granted in the Constitution. In that case, the Kelo Court was activist.

That’s the kind of activism Randy Barnett was getting at when he wrote:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony? …

Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment? 

But conservatives cannot complain that the Kelo decision was another example of judges overriding the decisions of elected officials, which is their usual definition of “judicial activism.” In this case, the judges lamentably deferred to local elected officials, ignoring the property rights protections in the Constitution.

One Year after Kelo, Good News and Bad News

June 23rd was the anniversary of the Supreme Court’s infamous Kelo decision, allowing local governments to transfer property from one private owner to another so long as there is some perceived public benefit. And, of course, there always is some benefit; as Justice Sandra Day O’Connor wrote in dissent, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory” — because in each such case the city would get more tax revenue, and the city council would regard that as a public benefit.

On the anniversary of the decision, homeowners Susette Kelo and Pasquale Cristofaro finally settled with the city of New London on the terms of their eviction.

Also on the anniversary, President Bush signed an executive order that, in the words of a Washington Post headline, “Limits Eminent-Domain Seizures.” The Post and the AP should have learned by now to be more skeptical of Bush administration claims. The executive order really does very little. It says the federal government will only take property from its owners “for the purpose of benefiting the general public.” But the Supreme Court has just said that virtually anything goes under that standard.

Cato author Timothy Sandefur says that the executive order likely means nothing, but it’s good that the president issued it anyway, considering that the administration didn’t file a brief in the Kelo case.

Cato author Ilya Somin disagrees, saying, “Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved.” And he agrees that “this language validates virtually any economic development condemnation that the feds might want to pursue. Officials can (and do) always claim that the goal of a taking is to benefit ‘the general public’ and not ‘merely’ the new owners.”

If you don’t believe these churlish libertarians, you can listen to dedicated land-grabber Douglas Kendall of the Community Rights Counsel (a private nonprofit organization formed to assist governments in their efforts to take their citizens’ property), who told the AP, “This order appears to apply to a null, or virtually null, set of government actions.” He noted with relief that the order did not include a ban on funding for state and local development projects that employ eminent domain.

So where’s the promised good news? Well, it may pale next to the news that Kelo and her neighbors are finally being forced out and the news that the Kelo decision opened the floodgates for more property seizures than ever. But it’s still good news that Cato has just published Cornerstone of Liberty: Property Rights in the 21st Century by Timothy Sandefur, the first post-Kelo book on why property rights matter, how they’re protected in the Constitution, how local governments and the Supreme Court are ignoring the Constitution, and how to protect property rights after Kelo. Buy it now. Read it. Send it to your legislator and your member of Congress. And keep an extra around to give to the next neighbor whose property is threatened with seizure.

Protecting Your Privacy

As I purchased $10 worth of trinkets at the Container Store, the clerk began the transaction by saying, “May I have your phone number?” I replied, “Uh, no.” And that was that; without any objection he rang up the transaction. 

One way people can protect their privacy is by saying “no” more often. Companies ask for information, but they often don’t require it.

A couple of years ago, a guard at the White House looked at my driver’s license and told me, “You shouldn’t use your Social Security number as your driver’s license number.” So there’s another tip: ask the DMV to assign you a random number for your license.

None of this, of course, will stop your bank or phone company from giving up your information when the feds ask. But there are steps everyone can take to keep our lives just a little more private.

Conservatives on Executive Abuses

Here’s an interesting anecdote bearing on the dangers of unchecked surveillance powers. And it comes from a somewhat unlikely source: the Heritage Foundation’s Lee Edwards, a historian of the conservative movement and biographer of Barry Goldwater. 

Edwards tells the story of the FBI, at Lyndon Johnson’s request, placing bugs on Barry Goldwater’s campaign plane:

The bureau’s illegal surveillance was confirmed by Robert Mardian, when he was an assistant attorney general in Nixon’s first term. During a two-hour conversation with J. Edgar Hoover in early 1971, Mardian asked about the procedures of electronic surveillance. To Mardian’s amazement, Hoover revealed that in 1964 the FBI, on orders from the Oval Office, had bugged the Goldwater plane. Asked to explain the blatantly illegal action, Hoover said, “You do what the president of the United States orders you to do.”

Here’s another such anecdote from another conservative, federal judge Laurence Silberman, by way of Robert Novak. As a deputy attorney general in 1974, when the House Judicary Committee asked him to review secret files kept by J. Edgar Hoover. Silberman discovered a cache of “nasty bits of information on various political figures — some still active.”  According to Silberman, “Lyndon Johnson was the most demanding” when it came to requisitioning FBI political intelligence. In 1964, after D.C. police arrested LBJ aide Walter Jenkins for homosexual conduct, special assistant to the president Bill Moyers ordered Hoover to find something similar on Barry Goldwater’s campaign staff. 

Conservatives may get a kick out of Moyers’ discomfort at having his gutter tactics exposed (“I was very young. How will I explain this to my children?”), but there’s a larger point here beyond schadenfreude. When presidents get to exercise unchecked power in the national interest, they tend to have a hard time telling the difference between the national interest and their own political fortunes. The post-Watergate reformers made some mistakes, but many of their reforms — FISA among them — were aimed at changing the dynamic described by Mardian: “You do what the President orders you to do.”

Unfortunately, the Bush administration’s legal theories threaten to shift it back.   

It’s Not Just About No-Knocks

Jacob Sullum writes:

Hudson v. Michigan, the recent decision in which the Supreme Court said evidence from a search in which police failed to follow the “knock and announce” rule is admissible in court, ostensibly hinged on how close the connection between a Fourth Amendment violation and the discovery of evidence must be to trigger the exclusionary rule. The dissenters argued that the failure of police to wait more than a few seconds for the suspect, Booker Hudson, to answer the door rendered the whole search invalid, making the evidence police obtained “fruit of the poisonous tree.” Writing for the five-justice majority, Antonin Scalia said the exclusionary rule did not apply in this case because the Fourth Amendment violation was not essential to the discovery of the evidence. Had police waited, say, 15 seconds and given Hudson the opportunity to answer the door, Scalia reasoned, they still would have found Hudson’s drugs and gun.

Yet as Scalia also noted, if the police believed that wasn’t the case, that waiting 15 seconds would have allowed Hudson to get rid of the evidence, the “knock and announce” rule would not have applied. So the nexus between barging in and finding the evidence does not really matter. Whether or not a knock-and-announce violation is necessary to preserve evidence, the evidence can be admitted an easy rule for police to remember but not one that is likely to encourage respect for the knock-and-announce requirement.

This is one of the inherent contradictions in the policy of no-knocks and the use of SWAT teams.

After Wilson v. Arkansas, in which the Court ruled that the Fourth Amendment generally but not always requires police to knock and announce themselves before entering a private home, several states passed laws requiring announcement, banning no-knock warrants issued from the bench. Since Hudson, there’s some talk that yet more states will pass similar laws (Indiana is considering it, for example). But these laws are meaningless, for a couple of reasons:

First, the “exigent circumstances” exceptions still allow police to decide at the scene to enter without announcement if they think the suspect will dispose of the drugs, or that he poses a threat to police. Before Hudson, whether or not the police made the right call was determined after the fact, at trial. (If they found nothing incriminating, the entire raid was chalked up to “oops,” except in the rare case where the person on the receiving end of the raid brought suit.) After Hudson, there’s little reason to make such an after-the-fact evaluation, given that the evidence will be admitted either way.

Second, defenders of SWAT teams and dynamic entry tactics say they’re necessary to take suspects by surprise. This, they say, prevents violence. I’d argue it encourages violence and confrontation, but for the sake of argument, let’s say they’re right.

But the same people say that Hudson won’t really change anything. Police will still observe the rule, and knock and announce before entry. But the purpose of the knock-and-announce rule is to give the suspect the opportunity to answer the door, and avoid the destruction of property and violence of a forced entry. You can’t have it both ways. You can’t say we need SWAT teams to take suspects by surprise, but that most SWAT teams are also observing the letter and spirit of the knock-and-announce requirement.

That requirement is to give notice and opportunity to answer. And that, of course, is incompatible with “surprise.”

This is illustrated by the fact that these raids are commonly conducted late at night, or very early in the morning. If you’re asleep — perhaps in an upstairs bedroom — and police knock and announce just seconds before breaking in, for all practical purposes the difference between “no-knock” and “knock-and-announce” is nil.

But don’t take my word for it. California has had a law against no-knock warrants for some time. After a 1999 dynamic entry raid in which El Monte police shot and killed Mario Paz — an innocent man — the assistant chief of police told the Los Angeles Times: “We do bang on the door and make an announcement — ‘It’s the police’ — but it kind of runs together. If you’re sitting on the couch, it would be difficult to get to the door before they knock it down.”

I’ve been outspoken on the Hudson case. But the truth is, it’s a peripheral issue. The main problem here is not no-knock raids, legal or otherwise. The main problem is the paramilitary tactics, and this relatively recent fervor to break down the doors and storm the homes of suspects who, even if guilty of what’s suggested in the warrant (generally drug crimes), aren’t an immediate threat to the public, the community, or anyone else.

I Voted for What?

Rep. John McHugh (R-NY) is an important man in Congress. He serves on the House Armed Services Committee and chairs its Military Personnel Subcommittee which spends $85 billion annually.

Whether he knows how that money is spent is an open question. The Hill reported today that McHugh voted for a defense authorization bill that included a provision “he said he philosophically opposed.” (The provision overrode a federal court’s decision in a dispute between National Guard members and the government about who should pay for correspondence courses).

McHugh apparently had not read the defense authorization bill. Never mind, everyone does it, as The Hill reports, “It is no secret that some — if not most — lawmakers vote on bills that they do not read in their entirety.” McHugh notes that “hundreds and hundreds” of provisions come through, and he relies on his staff “for judgment on more routine matters.”

Members of Congress are elected to work on behalf of their constituents. How can they do that if they don’t read the bills they pass? It is true that the government is so large that supervising how well past laws are being implemented, much less reading bills, takes a lot of time and effort. Maybe more time and effort than even a hard-working member has.

Here’s a thought for members of Congress: maybe the fact that you don’t read the bills you vote for means the government has grown well beyond anyone’s control. Maybe — and this will be shocking to you — the government is too big.