Topic: Law and Civil Liberties

Conservatives Say: Politics Above All

The Washington Times brings news this morning that conservatives are “expressing concern and outrage” about House Speaker Denny Hastert’s strong objections to the FBI’s raid on Rep. William Jefferson’s House office.

Perhaps such “conservatives” ought to recall what the real conservative libertarian who designed the U.S. Constitution once wrote:

But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

Hastert is acting in the spirit of Federalist 51. To be sure, there are other considerations in this case, but Hastert is doing what Madison expected congressional leaders to do: stand up for his branch of the government against an encroachment from an ambitious executive. Those who are criticizing Hastert are trying to make corruption a bipartisan stain or to raise public approval of Congress by a point or two. They are ignoring the constitutional dimension of all this.

I’ll take the timeless logic of Federalist 51, thanks.

Ezra Klein, Libertarian?

Since I’ve disagreed with Ezra Klein in the past, I am pleased to report that we agree on what to do about the 7,000 Americans who die every year while waiting for transplantable organs. In a recent post, Klein notes that the shortage of organs is due to a ban on payments to organ providers. Klein advocates lifting that ban.  My favorite line:

We’ve stupidly disallowed payment for organs (if money can’t buy you life, why keep it around?)…

Klein brought to mind an observation made by Prof. Richard Epstein last week in the Wall Street Journal:

Only a bioethicist could prefer a world in which we have 1,000 altruists per annum and over 6,500 excess deaths [to] one in which we have no altruists and no excess deaths.

In Healthy Competition, Mike Tanner and I argue for repeal of Sen. Orrin Hatch’s 1984 National Organ Transplant Act, which prohibits payments to organ providers. 

In a recent issue of Cato’s Regulation magazine, Prof. Lloyd Cohen throws up his hands and issues a challenge to those opposed to such payments. Cohen has re-written his will to ensure that when he dies, his organs cannot be harvested unless his estate is paid $864.27 per organ. Why? Because that requirement will create a real-life situation where paying up will generate more transplantable organs. That will force the bioethicists to explain to four, maybe five families who have their checkbooks in hand, We’re sorry, but your loved one must die for our principles. Cohen urges others to insert similar clauses into their wills, just to get the message through the bioethicists’ heads.

Cohen and other powerful presenters will speak at a June 12 conference on organ markets at the American Enterprise Institute.

Sense and Sensenbrenner

Congressional whining over the FBI raid of Rep. William Jefferson’s office has reached the point of self-parody. Rep. James Sensenbrenner has now called for rare out-of-session hearings on the raid, titled, “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?”

This would be the same James Sensenbrenner who wants to give federal law enforcement the power to snoop in on your Internet browsing, and who recently introduced a bill that would send parents to prison if they learn of drug activity near their children and fail to report it to authorities within 24 hours.

“Trampling the Constitution,” indeed. Amazing how reverent politicians get for the Constitution and the rights of the accused when one of their own is under the gun.

Little Victories

…in the fight against the Nanny State: in Massachusetts, the state legislature just narrowly rejected ”primary seat belt legislation.”  In English, that’s a law that gives police the power to pull you over simply because someone in your car isn’t wearing their seatbelt (“secondary seat belt laws” allow them to ticket you for not wearing a seatbelt only if they’ve stopped you for some other infraction). 

Last summer, using night-vision equipment on loan from the National Guard, Maryland state troopers scanned passing cars, then swept out and nabbed 111 offenders for the crime of driving without a seatbelt. Scores of people who were driving along, minding their own business, had their evening ruined by an unpleasant encounter with the business end of the law. Law enforcement overreaching caused an outcry in that case, and citizen pressure in Massachusetts seems to have led several lawmakers to back away from the primary seatbelt bill.

It’s good to know that even in Massachusetts there’s still some resistance to the growing crusade to ensure healthy living through coercion. But it’s not coming from the Governor’s office. Mitt Romney, GOP presidential hopeful for 2008, had promised to sign the bill.

Toughman Contest

U.S. News has an interesting profile of David Addington, Vice-President Cheney’s chief of staff and top legal adviser—a key player in administration debates over torture, domestic detention, and NSA surveillance. One thing that stood out for me was this description of the social dynamic at work when administration lawyers crafted War on Terror policies:

Whether or not he became the de facto leader of the group, as some administration officials say, Addington’s involvement made for a formidable team. “You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power,” says a former Justice Department official. “If you suggested anything less, you were considered a wimp.”

For background on the legal theories that emerged from that environment, see here.

Congress’ Sudden Concern for Overly Aggressive Policing

While the leaders of Congress were wringing their hands over a corrupt colleague having his office raided by FBI agents in suits, a drug task force in Wisconsin needlessly terrorized two completely innocent people last night. From Dodgeville, Wisconsin:

Members of a drug task force burst into a Dodgeville apartment Monday night and arrested two people before officers realized that they were in the wrong apartment.

Richland-Iowa-Grant Drug Task Force members entered the apartment about 10:15 p.m. and arrested its two occupants in what police considered a “high-risk” drug bust, according to the Dodgeville Police Department. Minutes later, they realized that they were in the wrong place and released the occupants.

[…]

Task Force Director Lt. Scott Marquardt said the task force was reviewing what led to the accidental arrests. He said the task force was sorry for what happened to the innocent neighbors.

“We’re very disappointed,” Marquardt said. “We regret the stress and the inconvenience that we caused. That’s not how we do business.”

From research I’ve done for a forthcoming Cato paper, I’d estimate these types of “wrong door” raids are reported in the media 2-3 times per month in the U.S. (it’s likely that they happen and go unreported much more frequently). Most of the time, victims escape with no worse than a broken door and a fractured psyche. Many times, they end up injured. And once or twice a year, an innocent person ends up dead.

With its tireless support for the drug war, and its policy of making surplus military equipment from the Pentagon available to local police departments, Congress is responsible for an explosion of SWAT teams across the country, and a massive increase in the number of times these teams are deployed on such “no-knock” raids. Drug warrant service now comprises the overwhelming majority of SWAT team “call-outs” in America.

So before congressional leaders fret over the “unduly aggressive,” “intimidating” raid of a sitting member’s office, they ought to look into how their own policies have led to police kicking down the doors of dozens of innocent or nonviolent drug offenders in their homes each day in this country.

They could start by Googling “Alberta Spruill,” “Clayton Helriggle,” or “Alberto Sepulveda.”

Don’t Tread on My Legislative Privilege

Tongue implanted in cheek, David congratulates Congress for finally finding an illegal exercise of executive power to condemn: an FBI raid on Rep. Jefferson’s offices. However, congrats may be premature, because it’s not entirely clear whether the raid is illegal.

(Usual warning: Lengthy lawyer parsing follows. Proceed at own risk. Short version: there are some good arguments that the FBI raid is illegal, but the case law is far from clear on this point.)

The Speech and Debate Clause provides:

Senators and Representatives … shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their Attendance at the session of their respective Houses, an in going to and returning from same; and for any other Speech and Debate in either House, they shall not be questioned in any other Place.

Jefferson is under investigation for bribery. Congress itself has expressly made it a crime for members of Congress to accept bribes (18 U.S.C. s. 201). The Supreme Court has held (in United States v. Johnston, 383 U.S. 169 (1966)) that the Speech and Debate Clause does not absolutely immunize members of Congress from prosecution under a valid bribery statute (enacted, remember, by Congress).

To be sure, the Court held that some acts are “immune” from prosecutorial snooping even under a valid bribery statute—that is, they cannot constitute part of the evidence on which the prosecution relies. But, the Supreme Court has held this immunity applies only to the following: (1) “legislative acts”—those generally done in the process of enacting legislation” (United States v. Brewster, 408 U.S. 501, 514 (1971), which includes making speeches on the floor of a House of Congress or in committee, voting on the floor or in committee, contributing to reports entered into the legislative record; (2) other acts that are “integral” to deliberation connected to legislative acts. (Gravel v. United States, 408 U.S. 606, 625 (1972)).

That means a host of legislative business unrelated to enactment of specific legislation—from petitions to agencies on behalf of constituents, to ordinary constituent meetings, to speeches in the home district, at Washington galas, or what have you—are not privileged “legislative acts” and therefore can serve as a basis for prosecution. That also means preparation that goes into these sorts of activities also isn’t privileged. The upshot: many papers and effects contained in Jefferson’s office might be searchable by federal investigators pursuant to a valid warrant. (Caveat: I haven’t pursed the allegations against Jefferson).

Assuming they are searchable, that doesn’t settle the conditions on executive entry onto the physical grounds of Congress, on which these papers are located. The privilege appears to attach to acts, not places. Hence the grounds of Congress themselves aren’t privileged. And the Constitution doesn’t tell us the conditions attached to executive entry into the Houses of Congress, pursuant to a valid warrant.

I haven’t yet seen any recent cases on this point, although I confess I haven’t done much searching. In ordinary Fourth Amendment law, searches of homes, for example, are subject to different rules than searches of cars or searches of persons on the street. For example, police must knock and announce themselves prior to executing a valid search warrant for a domicile. It seems reasonable that some restrictions on entry should also apply when police are seaking evidence related to non-legislative acts on the grounds of (the “home” of) Congress.

That’s consistent with the cases on legislative privilege: Arguably, for example, Congress’s institutional control over the physical integrity of the grounds of Congress is essential to legislative deliberation. Surely, for example, unannounced raids or, say, the fear of unknown FBI bugs and wiretaps could chill legislative deliberation. These concerns suggest the legislative privilege requires an analogue to the knock-and-announce rule. For example, perhaps executive officers should notify House or Senate leadership and Capitol police of intent to execute a valid search warrant prior to entering Capitol grounds. Since separation of powers concerns come into play, there may be an argument that more should be required than would be required in an ordinary domicile search: perhaps, for example, congressional leadership may require executive officers to be accompanied by Capitol police, at least absent exigent circumstances.

I’m not sure whether it would require even more than this (for example, require Captiol police themselves to execute the search). Arguably, participation of Capitol police may be essential to the institutional integrity of Congress and therefore to legislative deliberation, but exclusive congressional control over all aspects of investigation on Capitol grounds isn’t. And, after all, the Framers—by exempting certain crimes from the privilege of arrest—clearly intended to balance institutional integrity of Congress with the larger principle that no branch is above the law and its offices.