NEJM Reviews Medicare Meets Mephistopheles

This week’s issue of the New England Journal of Medicine carries a review of the Cato Institute’s latest health care book, Medicare Meets Mephistopheles by Cato adjunct scholar David A. Hyman. Reviewer Peter Jacobson of the University of Michigan School of Public Health writes:

Hyman’s bracing critique reflects the fact that neither Medicare’s problems nor the ascendancy of market-based approaches to solving them can be ignored any longer.

Medicare Meets Mephistopheles provides a good starting point for free-market advocates who are serious about preventing the federal government from imposing price controls on prescription drugs, or otherwise stealing from future generations.

Goodbye Warrantless NSA Surveillance?

The DOJ announced today it has reached a double super-secret deal with the FISA court which allows it to bring the administration’s NSA surveillance program within the statutory FISA framework governing surveillance warrants. What deal, you ask? The DOJ’s letter to Senators Leahy and Specter provides few details, except to say that it is based on a FISA court order that establishes “innovative” and “complex” warrant procedures that allow the administration to act with “speed and agility.”

Absent further information, its hard to tell whether this is a good development, although as Marty Lederman notes, it is “difficult to imagine that the FISA court would roll over and approve an ‘innovative’ legal theory if it were dubious – especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly.”

The administration’s about face underscores what I argued in this piece: that the administration’s claims that it was simply too cumbersome to comply with FISA held absolutely no water.

Lederman also notes that the threat of losses in ongoing multi-district litigation involving the state secrets privilege as well as the threat of congressional subpoenas, and possible litigation over executive privilege, may well have prompted the administration to give up its go it alone stance. I’ve previously argued that such threats had the potential to rein in the administration, without involving a winner-takes-all show down with the Supreme Court, here.

Less Redress, More Grievances

The first bill proposed in the U.S. Senate in the new session of Congress attacks freedom of speech.

Some organizations use direct mail and other means to urge the public to contact members of Congress on a variety of issues. Currently some of those groups do not have to disclose those efforts to prompt public input.

Sen. Joseph Lieberman (I-CT) is not happy with such freedom from regulation. He has proposed that such organizations should be forced to disclose these efforts if they spend more than $25,000 a quarter and do not have a dues-paying membership (see S1, Sec. 220).

According to CQ Today, Lieberman’s spokeswomen said, “There’s nothing in this measure that will stop, deter or inhibit anyone from petitioning the government.” If that were true, no one in Congress would support Lieberman’s proposal. Congress passes restrictions on First Amendment rights primarily to discourage political activity, thereby increasing the discretion of a member while decreasing their accountability.

This particular measure imposes new costs on the groups who exercise their First Amendment rights. It will also expose the groups and their supporters to abuse and attacks in the political arena. Both costs increase the price of petitioning the government for redress of grievances and thereby reduce its likelihood.

Is Lieberman’s bill constitutional? The U.S. Supreme Court has said that mandatory disclosure of activities tied to First Amendment rights (like say, “the right to petition the government for redress of grievances”) may be justified to prevent corruption (or its appearance) and to inform the public better about candidates or legislation. The groups give money to the U.S. Post Office or other direct mailers, not to members of Congress or other policymakers. Hence, quid-pro-quo corruption is not at issue here. The groups are also informing the public about issues and urging them to contact Congress. How any of this constitutes the “appearance of corruption” is anyone’s guess.

I suspect the traditional justifications for mandatory disclosure do not matter much here. No one seriously believes these direct mail campaigns corrupt politics. Members of Congress no doubt believe that these direct mail groups have more influence than they should have. In particular, members of the new majority running the Senate may believe the direct mail efforts to foster contacts with Congress give “undue influence” to their conservative opponents. Hence, Sen. Lieberman comes up with a bill to throw some sand in the gears of the conservative political machine.

If you ever doubt why the First Amendment exists, consider this: the first thing mild-mannered Joe Lieberman did when a new majority took control of the Senate was to attack the constitutional rights of those who disagree with him.

It’s Not Just About Nifong, Part II

Durham County district attorney Mike Nifong is now off the case, but his departure provides me with another opportunity to argue that the Duke University case is not just about Nifong.  (Dorothy Rabinowitz and Randy Barnett have made interesting and related points in recent days, for those interested in reading more).

Let’s assume that the North Carolina Attorney General’s office reviews the entire matter and then dismisses all of the charges against the Duke students.  Some will say that the system “worked!”  That is, prosecutorial overreaching was exposed and an injustice was averted … so let’s punish Nifong, close this case file, and … move on.  I disagree with that.  And, in defense of my view, I will introduce you to another prosecutor by the name of Tom Lock, district attorney in Johnston County, North Carolina.

Lock is responsible for jailing an innocent man for four years.  It is a long and twisted story, but I’ll give you the highlights.

Three men get together to rob a small business in Johnston County.

Keith Riddick planned the job and was the getaway driver.  Kendrick Henderson and Terrance Deloach went inside and brandished handguns.  Deloach then shot a woman twice at point blank range (she miraculously survived).  The men make their escape with petty cash.

Henderson left a fingerprint behind and was quickly apprehended. He tells the police that his accomplices were Keith Riddick and Riddick’s cousin from New York … first name “Terrance” … last name unknown. 

The police pick up a young man by the name of Terrance Garner, not Terrance Deloach. 

Garner declares his innocence, but the authorities believe they have their man.  From this point forward, the authorities seem utterly impervious to reason.

For example, when Henderson learns the police have the wrong man, he speaks up and tells them so.  His conscience bothers him so much that he disregards his attorney’s advice and testifies on Garner’s behalf–“He had nothing to do with the crime!”  DA Tom Lock calls Henderson a liar in front of the jury. 

To nail Garner, Lock made a deal with Riddick.  The deal is simple: If Riddick provides testimony against Garner (“cooperation”) he will get less jail time.  Riddick fails a polygraph shortly before the trial, but Lock uses him anyway.  From Riddick’s point of view, he gets leniency and does not have to “snitch” on his relative, Terrance Deloach.

Garner is convicted and is sentenced to 30-40 years in prison.

But wait.  Police in a nearby county go out of their way to follow up on the old “Terrance from NY” lead.  They arrest Terrance Deloach and get a confession to the robbery and the shooting.  Deloach is Riddick’s cousin and he has spent time in NY.  In fact, he spent time in a NY prison for shooting a person there.  Garner, in contrast, has no history of violence–just a drug possession arrest.

At first, DA Lock holds a press conference in which he confesses his mistake.  After all, why would this guy Deloach confess if he was not involved? 

Now things get mysterious.  After one night in the Johnston County jail, Deloach recants his confession.  DA Lock reverses course the next day and says his original case against Garner was solid after all. 

Garner’s attorneys move for a new trial.  A new jury ought to hear about Deloach and his written confession to the crime.  A new jury ought to know that Riddick gave perjured testimony where he denied having a cousin from NY named “Terrance.”  DA Lock fights this legal motion and prevails. Garner’s appeals go nowhere in the N.C. court system.  He starts serving his long jail sentence.

Summary of the case:

  • Riddick, the planner and perjurer, gets four years.
  • Henderson, who told the truth about Deloach, gets 11 years.
  • Garner, a totally innocent man, gets 30-40 years.
  • Deloach, the attempted murderer, goes free.

However, a terrific Frontline documentary brings new scrutiny to the forgotten case.  The film is so powerful that the system just cannot withstand the spotlight.  About one month after the documentary airs, a court sets aside Garner’s conviction and he is freed.

Frontline really helped Terrance Garner.  And the national media attention has really helped the accused Duke University students.  Without such intense scrutiny, Nifong would still be on the case, and it is doubtful that the North Carolina Bar Association would have launched an ethics investigation.  But what about all the other cases that do not get such intense scrutiny?  Something to think about.

Identity Crisis Book Forum Thursday at Cato

On Thursday, the Cato Institute is having a book forum on my book Identity Crisis: How Identification is Overused and Misunderstood.

Commenting on my presentation of the book will be James Lewis from the Center for Strategic and International Studies and Jay Stanley from the ACLU.

The REAL ID Act is under siege from state leaders who are bridling at this unfunded surveillance mandate, and legislation was introduced at the end of the 109th Congress to repeal REAL ID. But the immigration debate this year will surely fuel the push for a national ID with the demand for “internal enforcement” of immigration law. Identity Crisis lays the groundwork for all these discussions.

The event is streamed for those not in the area. To register, go here.

Civil Liberty (Paid for by Philip Morris USA Inc.)

In a recent radio interview, Deputy Secretary of Defense for Detainee Affairs Cully Stimson threatened top American law firms that have done pro bono work for Guantanamo detainees.  And, he suggested, Vito Corleone-style, that the corporations that bankroll these firms should think twice, if they know, eh-hem, what’s good for them: 

“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

A chorus of criticism has followed, which President Reagan’s Solicitor General, Charles Fried, has now joined in today’s Wall Street Journal (available here).  The money quote:

“It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony – one to savor, not deplore.

It is no surprise that firms like Wilmer Hale (which represents both Big Pharma and Tobacco Free Kids), Covington and Burling (which represents both Big Tobacco and Guantanamo detainees), and the other firms on Mr. Stimson’s hit list, are among the most sought-after by law school graduates, and retain the loyalty and enthusiasm of their partners. They offer their lawyers the profession at its best, and help assure that the rule of law is not just a slogan but a satisfying way of life.”

As a big-firm alumnus, I might quibble a bit with Fried’s claim that big firm practice offers a “satisfying way of life”–but he’s absolutely right that the participation of corporate-funded defense firms on detainees’ behalf is something that’s particularly praiseworthy about the American legal system.
 

End the Opium War

Anne Applebaum calls for ending the Opium War in Afghanistan.

Excerpt:

The director of the Senlis Council, a group that studies the drug problem in Afghanistan, told me he reckons that the best way to “ensure more Western soldiers get killed” is to expand poppy eradication.

Besides, things really could get worse. It isn’t so hard to imagine, two or three years down the line, yet another emergency presidential speech, calling for a “surge” of troops to southern Afghanistan – where impoverished villagers, having turned against the West, are joining the Taliban in droves. Before we get there, maybe it’s worth letting some legal poppies bloom.

For more on this, go here.