Defining Misconduct Down

When the police search an innocent person, there will be no criminal case.  So no criminal court judge will review the legality of the search.  Even putting aside the airport searches, there must be tens of thousands of such ’innocent searches’ each year.  In this category of cases, the only real “check” on unlawful police conduct is a civil lawsuit.  As a practical matter, in most cases, the party aggrieved is not going to bother to hire a lawyer to sue the police because he was roughed up or whatever.  In a small percentage of cases, the party aggrieved will incur legal expenses and pursue the case.   But the Supreme Court is increasingly hostile to such lawsuits.   Excerpt from today’s LA Times:

In December 2001, Los Angeles County sheriffs were looking for four black suspects in an identity-theft scheme. One of them was known to have a gun. When the deputies set out to raid a home in Lancaster, they did not know the suspects had moved three months earlier. Rettele had bought the home in September and lived there with Sadler and her 17-year-old son.

At 7 a.m., seven deputies with guns drawn came to the door and were let in by the teenager. He was ordered to lie face down.

The deputies then entered the bedroom and ordered Rettele and Sadler to get up and to show their hands. They protested they were not wearing clothes, but the officers insisted they stand naked next to the bed for a minute or two.

After a few minutes, the deputies admitted they had made a mistake, apologized and left. …

Without bothering to hear arguments in the case, the Supreme Court agreed and ruled for the deputies. …

John Burton, a Pasadena lawyer who represented the plaintiffs, said his clients had left California and were living in Kansas.

“I think this means we are in a dark period for the Supreme Court,” Burton said. “This was a case of incompetent officers finding themselves in the home of completely innocent people, and knowing they are not suspects, orders them out of bed stark naked. This is bullying, and it needs to be reined in.”

I agree.  The government lawyers say the deputies “didn’t know” the suspects had moved three months earlier.  Well, they should have.  This is the distressing trend–too often the police are skipping the investigative work and raiding homes.  Conservatives usually say, “well, if the police run amok, people can sue.”   Here, the Supreme Court said the couple’s claim is so weak that it should not even be argued before a jury.  And the high court did not even bother to have attorneys fully brief and argue this matter before them.  This action sets the tone for future lawsuits.

As I said, most innocent people will let police misconduct (non-severe) go.  They will not even consult an attorney.  After this ruling, the subset of aggrieved individuals who do meet with an attorney may be told that they would just be wasting their time and money … that their case will very likely just get tossed out of court. 

Bottom line: if police misconduct goes unchecked, we will get more of it.

REAL ID Update

Lots of interesting things continue to happen with the REAL ID Act, America’s faltering national ID law. Passed in May 2005, it would have states issue drivers’ licenses and IDs to federal standards by May of next year.

The count of states rejecting implementation of this federal surveillance mandate has now reached 11, with Missouri, Georgia, and Nevada most recently joining the list of states opposed.

Interestingly, Department of Motor Vehicle bureaucrats in Nevada continue to move forward with REAL ID planning, despite the opinions of the state’s legislature. According to a Federal Computer Week article posted today, “Nevada’s Department of Motor Vehicles … is investigating facial recognition and various methods for sharing driver’s license information with other states and the federal government.” This, despite the legislature consistently cutting funding for implementation and passing legislation urging Congress to repeal REAL ID. But what’s a legislature to stand in the way of bureaucrats doing what they want to do?

Activity in other states continues. In Michigan, Rep. Paul Opsommer (R-DeWitt) has introduced a resolution urging Congress to repeal REAL ID. This has earned him plaudits from Lansing State Journal columnist Derek Melot, whose recent blog post about Opsommer’s bill was called “Somebody gets it.” Indeed Opsommer does. (Be sure to read the comments. Someone with behind-the-scenes knowledge has offered his take.)

At the federal level, Title III of the ballyhooed immigration reform bill might as well be called REAL ID II. It would spend $300 million trying to get states to implement the REAL ID Act. (This is both too much and too little. Too much, because REAL ID shouldn’t be implemented. Too little because implementation will cost the states and people over $17 billion dollars.) Most importantly, possession of a REAL ID-compliant license or ID card will be a condition of getting federal permission for working if Title III passes as written. The Department of Homeland Security is using immigration reform to try to resurrect its failed national ID plan, described by Senate Homeland Security Chairman Lieberman as “unworkable” when it originally passed.

Senator McCain’s Domestic Agenda

Sen. John McCain today laid out his domestic agenda in a speech before the Oklahoma State legislature.

The speech is noteworthy for two topics not mentioned by the Senator. First, he makes no promises about additional restrictions on campaign finance. Of course, he also does not promise any liberalizing reforms of government oversight of campaign spending, reforms that might appeal to Republican primary voters.

Senator McCain also omits any concrete proposals about cutting back the federal government. To be sure, he promises a government that is smaller and more efficient. He just does not say specifically what spending will be cut and which programs will be eliminated.  He does promise to spend more on the federal workforce. That does not seem likely to lead to a smaller federal government.

McCain praises business and suggests the federal government can become more like successful firms. He does not mention, however, how the burden of taxation might be eased on individuals and the businesses they create and manage.

“Reform” appears to be the theme of Sen. McCain’s domestic agenda. This brings to mind his hero, Teddy Roosevelt, hardly a exemplar of limited constitutional government. Perhaps we should be thankful that Sen. McCain has forsaken for now “reforms” like McCain-Feingold.

But it is hard to avoid the conclusion that McCain has given up on the idea of cutting back government in favor of individual liberty.  He wants instead a government run by people animated by “higher aspirations” and “dedication to the national interest.” In other words, Sen. McCain is a big government conservative without qualifications.

Ashcroft: Closet Civil Libertarian?

A piece in yesterday’s Post points out that, contrary to John Ashcroft’s reputation as a lockstep defender of the administration’s war-on-terror policies, as attorney general, Ashcroft “at times resisted what he saw as radical overreaching”:

In addition to rejecting to the most expansive version of the warrantless eavesdropping program, the officials said, Ashcroft also opposed holding detainees indefinitely at the U.S. military base at Guantanamo Bay, Cuba, without some form of due process. He fought to guarantee some rights for those to be tried by newly created military commissions. And he insisted that Zacarias Moussaoui, accused of conspiring with the Sept. 11 hijackers, be prosecuted in a civilian court.

All true, but the article leaves out one of the most important occasions on which Ashcroft pushed back.  In 2002, the adminstration seriously contemplated extending the Jose Padilla treatment–that is, indefinite confinement at the will of the president, without charges or access to counsel–to all Americans suspected of terrorist activity.  As Michael Isikoff and Daniel Klaidman reported in Newsweek three years ago, in addition to Padilla, “officials privately debated whether to name more Americans as enemy combatants—including a truck driver from Ohio and a group of men from Portland, Ore.,” as well as the Lackawanna Six

For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer. That’s what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. “They are the enemy, and they’re right here in the country,” Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing “material support” to Al Qaeda. 

Indeed, though Ashcroft seemed to have been on board with the transfer of Padilla out of civilian custody, he apparently helped prevent a much broader assault on the rule of law. 

Now I think calling John Ashcroft a civil libertarian for this would be setting the bar pretty low.  But after nearly six years of radical overreaching, it’s hard not to fall victim to the “soft bigotry of low expectations.” 

European Unions Want to Impoverish Workers

Even socialist and Marxist economists acknowledge that capital formation is the key to long-run growth and higher living standards. To be sure, they mistakenly think government should do the saving and investing, but at least they understand one of the prerequisites for future growth. Unfortunately, the same can be said for today’s European unions. According to a story in the EU Observer, trade unions are trying to discourage hedge funds and private equity from investing in Europe. This self-destructive effort – presumably motivated by a desire to prop up industries with inefficient union workforces – ensures that Europe will become even less competitive. In the long run, this means lower pay for workers:

Trade unions across the EU are preparing themselves to go on the offensive against the “big beasts” of private equity and hedge funds, believing their profit-oriented drive is undermining the bloc’s social fabric. “No one wants just a single market, they want something else out of Europe – some security against the big beasts that are in the single market like private equity and hedge funds,” the head of the European Trade Union Confederation John Monks (ETUC) told EU Observer.…Referring to “casino capitalism,” he said venture capitalists were only interested in buying a company, boosting the share price and selling, “leaving companies weakened by big debt.” …Critics say they often operate beyond normal regulations and are not transparent. The issue first generally entered the public consciousness in 2005 when Franz Muntefering, now German vice-chancellor, referred to hedge funds - which borrow large sums to bet in financial markets – as “locusts” waiting to swoop in and strip German companies of their assets, causing major job losses.

A Good Start on Immigration Reform

Today, the Senate begins debating a comprehensive immigration reform bill. The compromise bill announced last week is not perfect, but it offers a reasonable opportunity to reduce illegal immigration, secure our borders, and keep our economy growing.

The key to successful immigration reform, as I argued just last week in a new Free Trade Bulletin, is a workable temporary worker program. The compromise would allow 400,000 temporary workers to enter the country each year on “Y visas” to fill a multitude of jobs for which there simply are not enough native-born Americans available. We know from experience with the Bracero program in the 1950s that if we expand the legal opportunities for foreign-born workers to come to the United States, illegal immigration will drop.

The bill also legalizes most of the 12 million people currently in the country illegally by granting them temporary, renewable “Z visas.” Opponents will call any legalization an amnesty, but the compromise provisions would exact a $5,000 fine―not chump change for a low skilled worker―while requiring them to return to their home country before applying for permanent legal status. Permanent status would only be granted after the government clears the backlog of immigration petitions already outstanding, a process that will take about eight years. This is a far less generous legalization than what was offered in the 1986 Immigration Reform and Control Act, which handed immediate green cards to about 2.7 million previously illegal immigrants.

The bill would also shift the emphasis on immigration from family relationships to a broader list of factors, including education, English proficiency, and work experience. The bill would still allow family visas for spouses and minor children, but being the parent, sibling and grown child of a naturalized U.S. citizen would not longer be sufficient qualification.

This provision is drawing flak from a number of immigration supporters, but the shift away from a family-dominated immigration system makes sense. It is easier today than it was a century ago to maintain ties to extended family because of international travel and international telecommunications. Although I believe fears of “chain migration” are over-blown, this compromise would help to alleviate some of those fears among people who would otherwise support immigration reform.

Any legalization would be put on hold until certain quantifiable “triggers” are met. The requirements include beefing up the border patrol to 18,000 agents, erecting a 370-mile fence along the U.S.-Mexican border, and expanding detention facilities to hold up to 27,500 illegal aliens per day.

My concern with the triggers is that they will needlessly delay the single most important remedy for illegal immigration―a temporary visa program for new workers. The problem of illegal immigration exists because our immigration system is out of step with the realities of the American labor market. As Homeland Security Secretary Michael Chertoff testified before Congress in February, a legalization program would significantly reduce illegal traffic across the border, enhancing the ability of U.S. agents to capture people who would still be sneaking in to commit criminal or terrorist acts.

The bill also requires a nationwide employment verification program covering every U.S. worker, whether native or foreign-born. This is also troubling. An existing pilot program has exposed a disturbingly high error rate. U.S. citizens have been rejected by the system, requiring them to visit with immigration officials to prove their legal status. I doubt many native-born Americans will want to entrust their ability to earn a living to the reliability of a centrally controlled government data base.

These are kinks that can and should be worked out in the legislative process unfolding as we speak. Despite its shortcomings, the immigration reform plan unveiled last week and now before the Senate contains all the essential elements to finally address the growing problem of illegal immigration.

Europe’s Best and Brightest Flee the Welfare State

A Washington Post column on relations between Europe and the United States explains that ambitious and entrepreneurial Europeans are “voting with their feet” and moving to America:

Young Europeans are more eager than ever to work and study in the United States. A brain drain from France and Germany has sent some of their best and brightest to the United States. A top destination is Silicon Valley; an estimated 80,000 young French people, known for their math skills, have migrated there in pursuit of jobs with high-tech firms. When I spoke last year with about 50 Germans studying at MIT and Harvard, not one of them expressed a desire to return home. They all wanted to live and work in the United States, where, they said, opportunities are far more abundant. Many complained that the sclerotic welfare states in Europe punish those who work and reward those who don’t. So they’re fleeing the crushing tax burden at home for more lucrative challenges in the United States. Europe’s leaders are slowly waking up to the fact that, with shrinking birth rates and a diminished work force, the continent may no longer be able to afford lavish social benefits, such as universal health care, retirement on full pensions as early as age 50 and up to nine weeks of paid vacation per year. They are exploring best practices in the United States to see how to rekindle entrepreneurial spirit and push people off welfare rolls.