Topic: Law and Civil Liberties

McCain-Feingold Bites

So a court confirms that, under the McCain-Feingold law, it’s illegal to run ads urging a senator to vote for a bill in Congress if the bill is coming to the floor within 30 days of a primary election in which the senator is running unopposed. Because letting a grassroots group contact voters on a proposed constitutional amendment would compromise “the integrity of the electoral process.”

John McCain often takes the lead on economic freedom, and Russell Feingold was the only senator to vote against the PATRIOT Act, but they should both be sorely ashamed that they have so effectively blocked the voters from the sacred “electoral process.”

NSA Database II

The disclosure by USA Today that the NSA has another domestic surveillance database is no shocker. Yet the newly uncovered database includes only calling and receiving phone numbers, not the content of the conversations.

More ominous, when asked by Congress whether the NSA was monitoring the content of wholly domestic calls, Gonzales refused to rule out such surveillance. Indeed, from a policy rather than legal perspective, if it’s necessary and effective to monitor calls from, say, DC to Naples, Italy, then why not DC to Naples, Florida? If the NSA can disregard legal barriers because a communication might include information of foreign intelligence value, then monitoring domestic-to-domestic calls would seem no less justified than monitoring domestic-to-foreign calls.

When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US.  Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.

A Marshalltown Plan for Immigration

Below, Tom Palmer mentions Cato adjunct scholar Don Boudreaux’s wonderful essay on the ability of today’s United States to absorb immigrants as compared to our storied Ellis Island immigration heyday. I’d like to add a point that many Lou Dobbs fans seem not to fully grasp. Not only can we accommodate more people, we need more people.

I grew up in Marshalltown, Iowa. I’ll tell you, they’re not running out of space in Marshalltown. From the historic courthouse at the center of town, a ten to fifteen minute drive in any direction will put you in a cornfield. Over the past decade or so, Marshalltown has seen an influx of Mexicans – many from a single village, Villachuato – who came to work at the Swift meatpacking plant, or in the fields in the summer. This has caused a bit of friction in a middle-class town with a largely German and Scandinavian heritage – but just a bit. In fact, many small Midwestern towns like Marshalltown have been fighting for decades to hold on to a dwindling population. This is a real problem. Marshalltown businesses, for example, receive less than one application for each new job opening.

In 2001, with typical Iowan civic spirit, then-mayor Floyd Harthun ventured down to Villachuato to see if he could learn something about Marshalltown’s newest workers and taxpayers. Here’s part of an account of that trip, from a 2002 article in Governing Magazine (for state and local governments), which illustrates the symbiotic relationship between Mexican immigrants and towns like Marshalltown:

[Villachuatans] account for about half of the 1,900 employees at the largest employer in Marshalltown, a Swift & Co. meatpacking plant that also generates 1,200 additional jobs at related companies. Mexicans also have opened several new businesses in town, and their children have propped up sagging enrollment in Marshalltown schools. Not surprisingly, Mayor Harthun was eager to learn more about them – in part, because he wanted them to stay. “I was being self-serving,” he admits. “We need people.”

When Harthun reached Villachuato, several hours’ drive west of Mexico City, he was surprised to discover just how much the people there need Marshalltown as well. “About a third of the license plates were from Marshall County,” he recalls. He learned that Villachuatans who live in Marshalltown sent money to provide electricity and underground water in their native town, helped finance road-paving projects and restored the town church and town plaza. As Harthun visited with his hosts, he also started to understand something else: The villagers in Mexico are in close contact with their friends and family members in Iowa. “If a job opens up in Marshalltown,” he says, “the people in Villachuato know about it even before I do.”

Marshalltown (population 29,000) and Villachuato (about 15,000) are examples of what [University of Northen Iowa professor Mark] Grey calls “unofficial sister cities” – pairs of communities in Iowa and Mexico whose economies have become interdependent as a result of the flow of workers across the border. As Harthun learned, these relationships have developed out of view of the mainstream media and established institutions, following a logic rarely acknowledged in today’s polarized debates over immigration. And they show that while Americans often view immigration as an act of graciousness on our part, for many communities, it is becoming an economic development strategy as well, possibly making the difference between prosperity and economic decline.

What I love about this story (other than the fact that it makes me proud of my hometown) is the way it illustrates the positive-sum nature of exchange and human cooperation. Nobody loses when Marshalltown and Villachuato become sisters. It is maddening to see the Minutemen stringing barbed-wire along the Mexican border because that is an attempt to erect a literal barrier to the exercise of our natural moral right to cooperate – to deny our ability to make strangers our friends (our figurative siblings, even) through exchange. I agree that there is something terribly wrong when millions of people have to break the law to excercise their moral rights. But the problem isn’t that people are trying and succeeding to exercise them. The problem is poor legislation that fails to acknowledge, accommodate, and protect those rights. We can do better.

Marshalltown, a typical apple pie and baseball Midwestern town, has a great physical infrastructure, outstanding public schools, and more than enough room, physically and culturally, for tortillas and futbol. But it can’t merely accommodate more people, it needs them. There are thousands of Marshalltowns in this country (though no other may have my heart) that new immigrants could benefit and that could benefit new immigrants.

Now, part of the difficulty with immigration in a huge country like ours is that a lot of newcomers never make it out of the region of entry. This does place an undue burden of absorption on border states and port cities. No doubt most rural Mexicans have never heard of such exotic, faraway places as Iowa or Nebraska. But they should hear of them; they are needed there. Perhaps immigrants ought to be encouraged, like subway riders, to make space around the doors and move to the center.

NSA Database

USA Today reports that the NSA has a massive database of Americans’ phone calls. This is going to keep Bush’s controversial legal theories in the news for the next few weeks – especially since confirmation hearings for CIA director-designate General Michael Hayden are right around the corner. Here’s a pertinent excerpt from our new report on Bush’s constitutional record:

President Bush’s claim that he has the “inherent” power as commander in chief to order the secret surveillance of international e-mail and telephone conversations of persons within the United States raises a host of disturbing questions. For example, if the president can surveil international calls without a warrant, can he (or his successor) issue a secret executive order to intercept purely domestic communications as well? Can the president order secret warrantless searches of American homes whenever he deems it appropriate? Attorney General Alberto Gonzales has indicated that the president can order secret searches of American homes because President Bill Clinton deemed such break-ins “legal,” as if that would bolster the validity of his claim. 

Since Bush and his lawyers believe the president can arrest Americans without warrants (see the Department of Justice legal brief in the Padilla case), they presumably believe that domestic eavesdropping without warrants is also legal and appropriate. We’ll see what General Hayden says when he comes before the Senate.

Recent Cato debate on the NSA program here. Even more general background in this Cato report, Watching You.

Diversity: Math Counts

The Washington Post reports:

President Bush’s crop of political appointees includes fewer women and minorities than did President Bill Clinton’s at comparable points in their presidencies, according to a new report by House Democrats.

Women made up about 37 percent of the 2,786 political appointees in the Bush administration in 2005, compared with about 47 percent in the Clinton administration in 1997, according to the report and supplemental data released last week by the Democratic staff of the House Government Reform Committee. Similarly, about 13 percent of Bush administration appointees last year were racial minorities, compared with 24 percent in the fifth year of Clinton’s presidency.

Unlike the Democratic report [.pdf], the Post noted that Bush is the first president to appoint a minority to any of the top four Cabinet posts: State, Defense, Treasury, and Justice. And he has appointed three minorities to those jobs.

But there’s another problem with the Democratic analysis. Presidents usually draw their appointees from the ranks of their supporters, and they tend to reward constituencies that support them. Get more support from the South, and you’ll likely appoint more Southerners to office. If Catholics vote heavily for one party, that party is likely to appoint more Catholics. That’s partly a matter of rewarding your voters, and partly a reflection of the pool of supporters you can draw from. If blacks vote 9 to 1 Democratic, it’s likely that a Democratic president will have more blacks among his campaign workers, contributors, and party faithful. By that criterion, Bush has lived up to the demands of affirmative action better than Clinton.

In 1996, about 58 percent of Clinton’s voters were women, 11 points higher than the percentage of women among his appointees. In 2000, about 47 percent of Bush’s voters were women, about 10 points higher than the percentage of women among his appointees.

More dramatically, Clinton got 27 percent of his votes from minorities, compared with 24 percent of his appointees. Bush got only 9 percent of his votes from minorities, but 13 percent of his appointees were minorities. So an identity-politics advocate would say that Clinton under-rewarded his minority supporters while Bush over-rewarded his.

The people who are going to manage vital services ought to be selected on the basis of their qualifications, not their race and gender. (Appointees who are merely going to be involved in useless and unnecessary federal programs can, I suppose, be selected on some other basis than ability and experience.) But to the extent that we’re going to look at “diversity” criteria, it seems appropriate to note that Bush has appointed more women and minorities in proportion to their presence in his coalition than Clinton did.

Jury Independence

Some good news for jury independence.  Three terrific rulings in three weeks.  I don’t know if this is an indication of anything significant, but I’ll take it.

First, some background.  The Sixth Amendment to the Constitution says that in all criminal prosecutions, the accused shall enjoy trial by jury.  The government has undermined that right in several ways.  First, it uses plea bargaining tactics [.pdf] to deter the accused from exercising the right to trial.  Second, the government tries to stack juries with people who will not question the law.  A prosecutor, for example, might ask a pool of potential jurors, “Anyone here have a problem with the war on drugs?”  After a show of hands, the prosecutor judge will then say something like, “Thank you for your candor.  Everyone who raised their hand is excused from jury service today.”  Third, after a jury is finally selected, the jurors will be told that they may not vote their conscience.  They must instead “follow the law” as it is explained by the trial judge.  Jurors are told that their job is to determine “the facts” – did the defendant initiate the attack or was she acting in self-defense, as she claims?  Sometimes that neat separation between the facts and the law breaks down, such as when a prosecutor wants to enforce a ban on handguns.  There is no factual dispute for the jury to decide when the defendant openly admits “Yes, I brandished a handgun.  But it was only to stop that guy from raping me.”  We rarely see such cases because prosecutors are clever enough to dispose of the case with a plea bargain.  “Ma’am, we understand you might have been raped, but what you did was against the law.  We don’t want you to go to prison for two years in these circumstances.  If you waive your right to a trial and plead guilty, we’re prepared to offer you five hours of community service, okay?”

The government uses these tactics every day and the courts have ruled that they are perfectly legal and constitutional.  This was not always the case.  Our second president, John Adams, said “it is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  American law has drifted so far from that idea, that if I put John Adams’s statement on a sign and walked outside a criminal courthouse, I might get arrested if I were to try and hold my ground against overzealous ”security personnel” from the courthouse.  Still, Cato publishes articles and books that make the case that the modern legal trend is wrongheaded.  Prominent academics, most notably, Amar, Green, and Reynolds, seem to agree, but the opposing view remains fairly dominant.

That’s the bad news.  Now to the good news.  Under modern law, it is still verboten for a trial judge to issue a direct order to the jury, such as “We will take a short recess now and I want the jury to retire and then return with a guilty verdict in twenty minutes.”  Similarly, it is also illegal for a judge accomplish the same end, but after-the-fact by overturning an acquittal and declaring the defendant “guilty.”  Those legal propositions are not disputed, but from time to time courts must decide cases where there is an allegation that the jury was “coerced” in some way.  The good news is that over the past few weeks there have been three such rulings and in each instance, the court came to the defense of jury independence.

Here’s a quick and dirty summary.

In a Maryland case, a note was sent to the judge after the jury started deliberating in a criminal matter.  The note complained that one of the jurors “did not trust the police no matter the circumstance.”  The judge responded by instructing the jury that such a skeptical point of view should have been disclosed by the juror before the case began.  The judge went so far as to say that this juror “might be violating the oath” that the jurors took earlier.  Shortly thereafter, the jury returned a guilty verdict.  On appeal, the defendant argued that the judge had coerced the verdict.  The Maryland Court of Appeals found coercion and overturned the conviction.  The appeals court said the trial judge’s admonishment may have caused the juror in question to “rethink her legal obligation,” go against her conscience, and vote with the majority.  In other words, it is improper to interfere with the jury’s independence.  Butler v. State. (Md Ct App) [.pdf] .

The second case involved a man on trial for first-degree assault.  The jurors were told that if they found the man not guilty of first degree assault–or if they simply could not unanimously agree on the first-degree charge, they should consider whether he was guilty of second-degree assault.  The jury returned a guilty verdict on the second-degree charge.  When the verdict was announced, the prosecutor asked the judge to clarify whether the jury was deadlocked on the first-degree charge or whether they had unanimously agreed that the defendant was not guilty of first-degree assault.  The judge proceeded to inquire of jury foreperson what had happened.  The jury foreperson explained that the jury was deadlocked and could not reach an agreement as to first-degree assault.  The trial judge then announced that, with respect to the first-degree charge, there was a mistrial, not an acquittal.  That finding is significant because the double jeopardy safeguard is triggered after an aquittal verdict, but not for mistrials because of hung juries.  The prosecution promptly announced its intention to retry the defendant and the defense objected.  The Supreme Court of Washington agreed with the defense that the court had acted improperly: “The trial judge erred by inquiring into the jury’s thinking about the first degree assault charge. … The jury’s resolution on first degree assault is beyond the realm of inquiry.”  In other words, state functionaries, including trial judges, should not interfere with the jury’s independence–most especially in a manner that might prejudice the defendant.

The third case involved the high-profile federal prosecution of Ed Rosenthal on marijuana charges in 2002.  This was one of the major skirmishes between Californians and the federal government over medical marijuana.  In 1996, California voters approved an initiative to allow marijuana use in certain medical situations.  The feds took the hard line: We don’t care what state law says, there is no “medical exception” to the federal ban on marijuana possession.  On the eve of Rosenthal’s trial, federal prosecutors asked the trial judge to lay down some ground rules for the trial.  No medical marijuana defense.  And Rosenthal should not be allowed to make any argument aimed at jury nullification. The judge readily agreed to those requests.  Weeks later, as the jury was deliberating Rosenthal’s fate, one juror decided to contact her attorney-friend to ask a question about a legal point.  The juror was frustrated because she had surmised from questions asked during the early jury selection phase of the case that there was a medical marijuana angle–and yet there was no evidence introduced in the case about medical marijuana.  This troubled the juror–so she phoned her attorney-friend to ask ”if [she] had to follow the Judge’s instructions, or if [she] had any leeway at all for an independent thought.”   The attorney responded by saying that jurors definitely had to follow the judge’s instructions and went so far as to say that a juror “could get into trouble” for acting outside of those instructions.  Rosenthal was subsequently convicted by the jury, but on appeal, he raised this episode as one reason that he should be given a new trial.

[Digression: After the trial, the jurors were shocked at the information that had been kept from them and many approached Rosenthal and his legal team to explain why they voted the way they did.  Several wanted to help in his appeal in any way they could].

The federal appeals court agreed with Rosenthal’s argument and overturned his conviction:

Jurors cannot fairly determine the outcome of a case if they believe they will face “trouble” for a conclusion they reach as jurors.  The threat of punishment works a coercive influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished. United States v. Rosenthal (9th Cir). [.pdf].

Good stuff.