Virginia Attorney General Kenneth Cuccinelli reviewed the evidence and concluded that one Thomas Haynesworth had been wrongly imprisoned–so he persuaded Governor Robert McDonnell to grant him parole. Not a full vindication, because Haynesworth still has a felony record, but freedom. Remarkably, Cuccinelli went still further and added Haynesworth to his staff while promising to work to clear his name and wipe his record clean. David Keene has the full story here.

Encouraging President Obama to play Robin Hood—as if he needed encouragement—a group of religious leaders met with the president at the White House last week where they admonished him “to protect Medicaid, food stamps, aid to poor women with infant children, international development aid and other programs specifically targeted to the poor,” the Washington Post reports. Led by the progressive evangelical group Sojourners, and joined by other Christian organizations from across the political spectrum, these are the folks about whom I wrote in the Wall Street Journal last April after they ran ads with the headline, “What Would Jesus Cut?”

Now that they’re using not simply the budget debates but the debt ceiling battle to promote their agenda, two points are worth noting. First, we need to remember that “helping the poor” is what got us into our recent mess to begin with: the Community Reinvestment Act, which promoted mortgages for people who couldn’t afford them; the Fed’s inordinately low interest rates, which gave further encouragement; Freddie and Fanny—all leading to the housing bubble that precipitated the Great Recession.

Second, the implicit message—made explicit with Obama’s obsession over “corporate jets”—is that if we can’t cut spending, we’ve got to raise taxes on the rich. Never mind that the top 1 percent pay more in federal income taxes than the bottom 95 percent. Far more telling, federal tax revenues, AEI’s Philip I. Levy reports, “have steadfastly remained at or below 20 percent of GDP for decades, through periods of high marginal tax rates and low.” Tax the rich into poverty, you won’t solve the problem, which is rooted in spending. But you will feel better—if equality is your aim. That too, over the longer haul, is what got us into this mess. There’s nothing wrong with inequality: it’s what lifts a thousand boats, including those of the people the Sojourners want to help.

Back in May, during the debates over reauthorization of the Patriot Act, Sens. Ron Wyden (D‑OR) and Mark Udall (D‑CO) began raising a fuss about a secret interpretation of the law’s so-called “business records” authority, known to wonks as Section 215, arguing that intelligence agencies had twisted the statute to give themselves domestic surveillance powers Congress had not anticipated or intended. At the time, I marshaled a fair amount of circumstantial evidence that, I thought, suggested that the “secret authority” involved location tracking of cell phones. Wyden backed off after being promised a secret hearing to address his concerns—but indicated he’d be returning to the issue if he remained unsatisfied. The hearing occurred early last month. Now I suspect we’re seeing the other shoe dropping.

At a confirmation hearing this morning for Matthew Olsen, who’s been tapped to head the National Counterterrorism Center, Wyden repeatedly asked the nominee whether the intelligence community “use[s] cell site data to track the location of Americans inside the country.” This comes on the heels of a letter Wyden and Udall sent to Director of National Intelligence James Clapper demanding an answer to the same question. Olsen was unsurprisingly vague, calling it a “complicated question” but allowing that there were “certain circumstances where that authority may exist.” The committee was promised a memo explaining those “circumstances” by September. That means that just about ten years after Congress approved the Patriot Act, a handful of legislators may get the privilege of learning what it does. Ah, democracy.

On a related note, one of the data points I cited in my previous post was that Wyden’s Geolocation Privacy and Surveillance Act had, somewhat unusually, been structured primarily as a reform to the Foreign Intelligence Surveillance Act (FISA), which governs intelligence spying, only later incorporating the same protections into the statutes governing ordinary criminal investigations. Especially striking was the inclusion of a specific prohibition on the use of Section 215 for location tracking, above and beyond the general warrant requirement. Since that writing, however, the bill gained Republican co-sponsorship, and dropped the changes to FISA that had previously been the bill’s centerpiece. Instead, the bill now contains an explicit exception for FISA “electronic surveillance,” in addition to the section providing for location tracking authorized by either a criminal or a FISA warrant. I’m not privy to whatever negotiations necessitated that change, but it’s hard to imagine anyone would have insisted on such a substantial restructuring if the intelligence community weren’t doing at least some location tracking pursuant to a lower standard than probable cause.

It’s not entirely clear exactly what the current version of the bill would permit, however. FISA is mentioned twice in the draft: once as part of a vague general exemption for “electronic surveillance,” and then again as one of the sources of authority for a “warrant” to do geolocation tracking. At a first pass, though, those two definitions ought to overlap, because FISA requires a secret intelligence court to issue a warrant based on probable cause (to believe the target is an “agent of a foreign power”) for government monitoring that falls within the FISA’s definition of “electronic surveillance,” in contrast with the far laxer standards that apply to the use of Section 215. It’s therefore an interesting puzzle what, exactly, that exception is meant to permit. Possibly the idea is to permit the (otherwise prohibited) “use” and “disclosure” of geolocation information already obtained without a warrant in order to target future judicially authorized “electronic surveillance,” but it’s hard to be sure. What does seem increasingly sure, however, is that location tracking is connected to the controversy over Section 215—and that Congress owes the American people a debate over the proper use and scope of that power, which it has thus far refused to have.

Good news from Texas, where a state appeals court has handed a major win to investigative journalist Carla Main, whose book Bulldozed: ‘Kelo,’ Eminent Domain, and the American Lust for Land took a critical look at the seizure of private land under eminent domain laws for purposes of urban redevelopment. Dallas developer H. Walker Royall didn’t like what Main wrote about his involvement in a Freeport, Texas marina project and proceeded to sue her, publisher Encounter Books (which I should note is also my own publisher on Schools for Misrule), and even liberty-minded law professor Richard Epstein over a dust jacket blurb Epstein had given for the book. (Earlier coverage of the suit here and here.)

A trial court had declined to dismiss Royall’s claims on summary judgment, but yesterday Judge Elizabeth Lang-Miers reversed in substantial part, ruling that Royall had failed to make the requisite showing that key passages in Bulldozed had in fact defamed him. The case is not yet over, but Institute for Justice senior attorney Dana Berliner, who argued for the defense, is understandably jubilant: “Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics,” she said. Moreover, outrage at Royall’s suit contributed to Texas’s enactment this summer (joining 26 other states) of strong “anti-SLAPP” legislation aimed at curbing lawsuits intimidating speech. You can read the opinion here, and early coverage at Gideon Kanner’s blog, the Dallas Observer and D Magazine.

Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

Read the whole thing.

It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.

I was going to write a blog post on the myriad follies of Mark Bittman’s op-ed in Sunday’s New York Times about all the ways the federal government could and should intervene in people’s dietary choices , but Jacob Sullum has already done it for me. Brilliantly.

HT: Radley Balko

Cory Maye was in his home one evening minding his own business when his front door came crashing down. Frightened that criminals were going to harm him and his child, Maye quickly retrieved a gun. When his bedroom door came crashing down next, Maye fired. When the lights came on, it turned out that the intruders were police officers and that Maye had killed one of them. The nightmare had only just begun for Maye. Police and prosecutors twisted a case of self-defense into a “murder” charge and they sought the death penalty. Cato fellow Radley Balko read about the case when he was researching a paper concerning the militarization of police tactics and no-knock raids. Radley then wrote about the injustice of Maye’s situation and word spread via the internet. A new legal team took up the case and appeals followed. When a court ordered a new trial for Maye, prosecutors offered a deal–plead guilty to a lesser charge and Maye would be set free because he had already served years in a Mississippi prison. Maye took the deal even though many thought he should not have any criminal conviction on his record for what happened that night. Still, it is hard to blame a guy for wanting to get out of prison to see his children just as fast as he possibly could. Maye was released a few days ago and here’s a snap of him playing around with his son. 

Congrats to Maye. Congrats to Radley. And congrats to Maye’s lawyers at Covington and Burling.

Previous coverage here and here.