Topic: Law and Civil Liberties

Fomenting Hysteria

Scotland Yard should rein in Deputy Police Commissioner Paul Stephenson.

Last week, discussing the foiled attack on passenger air transportation, Stephenson stood before cameras, flash-bulbs popping, and read the following from a prepared statement:

We cannot stress too highly the severity that this plot represented. Put simply, this was intended to be mass murder on an unimaginable scale.

Stephenson quite badly over-stressed the severity of the plot. It is easy to comprehend in terms of both execution and anticipated result. The planned attack would have killed many people in a very dramatic way - everyone should be glad that it was defeated - but it wasn’t anything near “unimaginable.”

Is this a quibble about semantics? No. Stephenson’s overwrought statement is a form of incompetence.

As I wrote last week (citing national security expert John Mueller), it is the reaction to terrorist attacks that inflict the most damage. Controlling the reaction through even-handed public communications is the best thing officialdom can do when an attack has succeeded - to say nothing of the opportunity for confidence-building when an attack has been thwarted.

The fact that this embarrassing public display was part of a statement written in advance is reason for Scotland Yard to fully review its communications strategy. Stephenson’s overreaction splashed across America’s television screens numerous times over the weekend.

Fortunately,the public doesn’t appear to be falling for it. A poll appearing in this morning’s Washington Post Express found that 72% of people feel safe flying. USA Today reports that air travelers are adapting quickly to measures that foreclose the threat of a liquid bomb attack. Let’s hope that the measures are quickly minimized to reach what attacks are actually possible, rather than those that are only speculative.

My colleague Gene Healy’s post here last week (preceding news of the foiled terror plot) and his citation to James Fallows’ article ” Declaring Victory ” are even more solid and relevant now than they were before. We do not face an existential threat from terrorism. The “War on Terror” is effectively won. All that’s left is for someone to declare it so.

Importing Ideas

In the new Afghanistan, which seems uncomfortably like the old Afghanistan, the cabinet has revived the Department for the Promotion of Virtue and the Discouragement of Vice. The government will once again be able to keep an eye out for short beards, chess playing, slipping veils, alcohol, and other vices.

An official tells the Washington Post that he’s “swamped with job applicants” for the department.

Perhaps if they lose in the fall, Sens. Rick Santorum and Joe Lieberman could team up to lobby for such a department in the United States. And future president Hillary Clinton just might endorse the effort.

“Chaoulli has brought Canadian Medicare to a fork in the road”

Colleen Flood of the University of Toronto law school has a working paper out on the impact of the Canadian Supreme Court’s ruling in Chaoulli v. Quebec. In that case the court basically said that if the government prohibits private health insurance, but then threatens people’s lives by making them wait for care in the state-run health care system, it is violating the people’s rights to life, liberty, and personal security.

Prof. Flood’s paper is titled, “Chaoulli’s Legacy for the Future of Canadian Health Care Policy.” From the abstract:

The decision was initially considered of limited importance by many given that technically it applied only to Quebec. In the six months since the decision was released, however, it has become clear that the legal impact of Chaoulli will be dwarfed by its normative impact on policy debates across the country. Chaoulli has brought Canadian Medicare to a fork in the road. At the time of writing, critical decisions are about to be taken across the country.

Flood’s paper is available from the Social Science Research Network here (subscription req’d).

Dr. Chaoulli – the chief litigant in the case – authored a paper for Cato on the ruling and its potential impact, available here.

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.