Criminal Law and Civil Liberties

July 31, 2020 2:38PM

How Strict Would “Strict Scrutiny” Be Online?

My last post set out the case that the International Covenant on Civil and Political Rights (ICCPR) offered strong protections to online speech on social media. Let's turn now to assessing that case. That case depended on Article 19 of the ICCPR which established both a broad right to free speech and a tripartite test for restrictions on speech by governments. Some have argued that the vagueness prong of the tripartite test would invalidate many “hate speech” restrictions. Let’s imagine social media companies adopt ICCPR in total. Would Article 19’s tripartite test in fact invalidate restrictions on speech rights online?

The “would” in my question reflects a subjunctive mood. I am assuming that ICCPR is not in fact now applied to speech on social media. But that may be a false assumption.

In 2019, the U.N.’s Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression argued that social media companies should apply international human rights on their platform including the tripartite test. David Kaye, the Special Rapporteur in question, has extensive knowledge of social media content moderation; he has published a well-regarded book on the topic. His normative call for action to the companies suggests they have not in fact adopted the tripartite test in their internal moderation. The experience of social media cannot tell us much about the empirical success or failure of the tripartite test.

The Special Rapporteur also notes the tripartite test obligates states that ratified the ICCPR. Accordingly, governments should have extensive experience applying the tripartite test. Apparently they lack such experience since the Special Rapporteur and the UN Human Rights Committee continue to note failures by national governments to abide by international human rights. Indeed the Special Rapporteur and the UN Human Rights Committee evaluate how well governments follow international human rights law. But they are not courts enforcing rights against recalcitrant as well as compliant malefactors.

Perhaps we can find something similar to the tripartite test in an individual nation. The test does look somewhat like the “strict scrutiny” test in American constitutional law. Courts apply “strict scrutiny” when the government restricts speech based on its content. Such restrictions may be valid only if they further a “compelling government interest” and are narrowly tailored to achieve that end. Is that a stringent test? The renowned law professor Gerald Gunther once claimed strict scrutiny was “strict in theory, fatal in fact.” In other words, when judges applied the test, they had in effect decided to strike down a government law or action. Was Gunther right?

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July 29, 2020 1:23PM

House Democrats Drop DHS Funding From Omnibus Appropriations Bill

Late yesterday afternoon, the House Rules Committee published the rule for debate on the omnibus spending bill (HR 7617) to be considered this week. Significantly, and almost certainly in direct response to events in Portland and elsewhere, the rule strikes Division E (the DHS funding section) from the bill. My Cato colleague (and fellow House staff veteran) Jeff Vanderslice noted that it was the Manager’s amendment offered by outgoing House Appropriations Committee Chairwoman Nita Lowey (D-NY) that was the vehicle for the change.

In my own review of the 340 amendments to the bill, I noticed that Amendment #106 to Division B (Commerce, Justice, Science and Related Agencies), offered by Representatives Ted Lieu (D-CA), Emanuel Cleaver (D-MO), Alexandria Ocasio‐​Cortez (D-NY), Rashida Tlaib (D-MI), and Debra Haaland (D-NM) would ban the use of funds for the Department of Justice’s Operations Legend and Relentless Pursuit–two alleged crime‐​fighting initiatives that some believe are simply political stunts and potential cover for anti‐​protester operations.

It’s unlikely House Democrats will elect to not pass any DHS appropriations bill this year, even though such a move is long overdue–as events in Portland and elsewhere have underscored. But putting further DHS money on ice can at least create leverage for potential major legislative changes…assuming the House Democratic leadership is actually serious about stopping constitutional rights violations by DHS personnel.

July 24, 2020 12:46PM

The DEA’s Opioid Production Quotas Threaten Hospitalized Patients, Yet Supply of Street Fentanyl is Plentiful

The COVID-19 pandemic has placed another stumbling block in the way of the Drug Enforcement Administration’s futile effort to reduce the country’s drug overdose rate through quotas on the manufacture of all forms of prescription opioids.

The DEA’s annual quotas have brought production levels more than 50 percent below 2016 levels. But, in response to the COVID-19 pandemic, the agency increased this year’s quota by 15 percent, to allow drug makers to respond to pandemic‐​induced shortages. Intravenous opioids such as fentanyl are valuable tools used to manage patients on ventilators—as well as inducing general anesthesia—and the DEA recognized the pandemic would likely increase demand for such drugs. Unfortunately, the agency conflates prescription opioid pills used in the non‐​hospital setting with intravenous opioids like fentanyl and morphine, almost exclusively used in hospitals, when it adjusted the manufacturing limits.

This has generated a shortage of intravenous opioids, causing many hospitals to cancel or delay necessary procedures and has jeopardized the management of patients on ventilators, according to a July 22 report from the hospital policy group Premier.

This is not the first time that DEA opioid production quotas caused a critical shortage in hospitals. I wrote here about the shortage the agency helped create in 2018.

While hospitals and patients suffer from the DEA’s war on opioids, fentanyl and other IV opioids are plentiful on the street. We learned last week in a preliminary report by the Centers for Disease Control and prevention that drug overdose deaths increased from 67,367 in 2018 to 70,980 in 2019. And deaths attributable to fentanyl increased by 15 percent, from 31,529 in 2018 to 36,509 in 2019.

Policymakers continue to believe that reducing the prescribing of opioids will somehow lead to a reduction in their non‐​medical use, addiction, and overdose deaths. This false hope persists despite the fact that data from the CDC and the National Survey on Drug Use and Health show no association between prescription volume and non‐​medical opioid use or addiction.

The drug overdose crisis is caused by non‐​medical users accessing drugs in the dangerous black market that is fueled by drug prohibition. But drug prohibition doesn’t only harm non‐​medical drug users. It harms patients as well—including critically ill patients in hospitals.

July 22, 2020 1:43PM

Federal Cops Without Badges, Coming Soon To a City Near You?

The federal Department of Homeland Security has sent Border Patrol agents to act as police in Portland, Oregon in recent days. By what authority? And have its agents behaved there in a way consistent with the law, the Constitution, and good police practice? I took a first look at those questions in a Monday piece at The Bulwark. Since then the situation has changed, and not for the better. [see update below — W.O.]

When I wrote, DHS was being careful to ground its actions in one of the narrowest and most widely accepted of the federal government’s law enforcement powers, that of defending its own installations from attack. (The Portland federal courthouse has come under recurring nightly siege for weeks, which has included arson attempts and physical assaults on officers.) This week, however, President Trump suggested that he would also send federal law enforcers into “Chicago, Detroit, Philadelphia” and other cities.

This is plainly a pivot into something else. Have you seen reports that courthouses or other federal property are under siege in most of these cities? I haven’t. In some of them, it has been weeks since the last widespread public unrest related to the George Floyd protests. Some of the cities are indeed known for alarming rates of homicide and gang violence, but those do not constitute an imminent threat to federal buildings, let alone some sort of Whiskey Rebellion‐​style insurrection against the feds’ political authority. As has been widely discussed in recent weeks, Trump could assert the authority to deploy actual military units to riot zones were he to invoke something called the Insurrection Act of 1807, but such an invocation would be deeply controversial, and almost ludicrous in the case of cities where there is plainly no insurrection going on.

If Trump follows through, and the administration begins to insert itself more broadly into local policing, expect it to seek out untested and unfamiliar legal authorities as justification. (For an example of how this worked in last month’s Washington, D.C. protests, involving a stretchy and loophole‐​ish excuse for putting state national guard units under federal direction, check out this Lawfare piece by Steve Vladeck).

In the mean time, the hands‐​on problems of the Portland deployment are coming into sharper focus. DHS is taking the defiant position that its agents will not wear badges with their own names, period — it says they’ll instead wear numerical “identifiers,” so at least it will have a hope of knowing which ones misbehaved. Its camouflage‐​wearing agents are clothed with enough ambiguity — bearing hard‐​to‐​spot agency patches, for example, together with generic “POLICE” rectangles — to threaten confusion over whether they are indeed genuine Federales or just rowdy freelancers making believe.

As for the arrests of persons bundled into vans, DHS has already essentially conceded that one was a case of mistaken identity, while another, analyzed here by Harvard Law criminal procedure specialist Andrew Crespo, appears to have lacked the probable cause required under constitutional standards. It’s hard to picture a defense of the federal agents’ conduct in the latter case that does not come back to the excuse that they were put on the street with training too skimpy for them to grasp the constitutional standards that apply to arrest.

That’s not a defense we should find satisfactory — especially if this federal policing campaign is to roll out to more cities.

UPDATE: Wednesday afternoon, after the above appeared, President Trump held a press conference announcing that he was assigning “surge” federal law enforcement to Chicago and Albuquerque, modeled after a pilot effort in Kansas City. From the initial coverage, my quick reading is that despite the talk of Portland Everywhere, this may be a pivot to a much less provocative (if still objectionable) kind of federal role. In particular, the U.S. Attorney in Kansas City said the federal participants “won’t be patrolling the streets,” “won’t replace or usurp the authority of local officers,” and, should they participate in arrests, to quote AP, “will be clearly identifiable when making arrests, unlike what has been seen in Portland.” Moreover, they appear in each case to have negotiated cooperation agreements with the cities involved — the feds are sweetening that with money. I see much talk of using the federal presence against gang shooters, rather than against demonstrating mobs, statue‐​topplers, etc.

In other words, it looks at a glance not like a roll‐​out of the Portland adventure but like a separate “crime wave surge assistance” program that would be new in almost no way — the feds already cooperate with cities on a lot of this — and would mostly involve FBI, DEA, and other conventional federal law enforcers rather than repurposed Border Patrol agents and the like. There is talk of deferring to local priorities, and no talk of getting anywhere near street policing or crowd control, while the numbers of feds involved are too small to suggest a big role in that anyway. In short, sound and flash but not actually a major assertion of new federal policing power as had been feared.

It is worth remembering, however, that just as this administration has sometimes followed highly aggressive announcements with relatively innocuous policy rollouts, so it has also sometimes done the reverse. And note that (in common with earlier administrations) this one continues to neglect to distinguish the constitutional distinction between its role in fighting federal crimes from a wider and more constitutionally irregular ambition of fighting local violence prosecuted under state law. “Indeed,” as Chief Justice Rehnquist wrote for the U.S. Supreme Court in U.S. v. Morrison (2000), “we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”

July 21, 2020 1:03PM

The People of Portland: DHS’s Involuntary Human Test Subjects

The people of Portland are now experiencing what many people of color–particularly Latinos living on the American side of the U.S.-Mexico border–have experienced for decades: out of control DHS agents violating their constitutional rights with apparent impunity.

A few years back, I launched Checkpoint America: Monitoring The Constitution‐​Free Zone, which examined Customs and Border Protection (CBP) checkpoints located inside this country–checkpoints which are frequently used to detain, question and sometimes inflict violence on motorists who refuse to answer whether or not they are U.S. citizens. Since the Supreme Court misguidedly blessed the use of such checkpoints by CBP in the infamous 1976 U.S. v Martinez‐​Fuerte decision, Congress has taken no action to put real limits on what CBP can and cannot do to people at those checkpoints, despite multiple General Accounting Office reports (2009 and 2017) showing how useless they are, and how they have morphed into generalized crime control checkpoints–something expressly forbidden in the Martinez‐​Fuerte decision.

The lack of oversight and restraints on CBP has created a culture of impunity. The same has been true of its counterpart DHS agency, Immigrations and Customs Enforcement (ICE) for decades. The bitter fruits of the lack of oversight and accountability for those DHS components is now on full display in Portland.

The de facto kidnapping by DHS agents of Mark Pettibone on July 15 should have resulted in the immediate suspension of the agents and a civil rights violation investigation by the Department of Justice. But it is the Department of Justice, in coordination with DHS, that is facilitating these kinds of rights violations.

On May 31, the Justice Department authorized the Drug Enforcement Administration (DEA) to conduct covert surveillance and related activities against Black Lives Matter protestors in the wake of the murder of George Floyd. And following President Trump’s issuance of a “monument protection” executive order on June 26, DHS on July 1 circulated press guidance to its components about how to field inquiries from reporters about pending deployments of DHS law enforcement personnel assigned to its “Protecting American Communities Task Force (PACT)” for “potential surge activity to ensure the continuing protection of people and property.”

This isn’t about protecting monuments. It’s about using the people of Portland as involuntary human test subjects for political repression operations carried out under the guise of protecting federal property–operations that DHS, with legal cover and possibly intelligence assistance from DoJ, intends to export to other cities beginning this week.

July 21, 2020 12:45PM

Portland and the Paramilitarization of the Border Patrol

Unidentified, camouflage‐​wearing federal agents carrying military‐​style equipment have been caught on video abducting people in Portland, Oregon. They do not bother to make formal arrests, read the captured their rights, or even announce the reason for detainment. The fact that the number of those abducted thus far appears small and that they have later been released without charges being filed does not make the abuse of basic civil liberties less shocking.

The deployment was ordered by Acting Secretary of Homeland Security Chad Wolf, who has said he is willing to send similar units to other cities that fail to bring an end to the post‐​George Floyd protests, a position that President Trump has affirmed. This has been done over the objections of both the governor of Oregon and the Mayor of Portland. The Oregon Department of Justice has since filed a lawsuit against multiple federal agencies alleging “unlawful law enforcement in violation of the civil rights of Oregon citizens by seizing and detaining them without probable cause.” Those of us who still believe in the importance of protecting state and local prerogatives in the face of an ever‐​encroaching federal government should be alarmed.

The fact that Wolf is an acting secretary is significant; he is able to wield this power by executive will alone and without having to go through the checks and balances constitutionally provided by Senate confirmation, a habit that Cato scholars have condemned in the past. Indeed, Wolf is the fifth to hold the position in the Trump administration and the third to do so in an acting capacity. It is an unprecedented rate of turnover for the office; nearly as many people have filled the position in Trump’s single term (five) as during the last four presidential terms combined (six). It raises the prospect of a future executive being able to cycle through acting officials in order to avoid legislative scrutiny until he or she finds one willing to grossly violate the Constitution.

Customs and Border Patrol (CBP), a division of the Department of Homeland Security, has been deeply involved in the Portland action. The Cato Institute has been a consistent critic of mission creep at CBP ever since the creation of this Frankenstein’s monster of an agency in 2003. Cato scholars have called out the agency for running inhumane detention camps, failing to punish gross criminal misconduct, and operating internal checkpoints deep inside the United States.

Indeed, few people realize that the court system has upheld CBP’s claim that the “border zone” should extend 100 miles from any national or coastal boundary, a line that encompasses nearly two‐​thirds of all Americans. Within that zone and regardless of whether you are an immigrant, CBP agents can search you without a warrant, detain you without probable cause, and even deport citizens without due process. In short, CBP enjoys very few of the checks on police power that hold state and local law enforcement to account and protect basic civil liberties.

Customs and Border Patrol has eagerly sought out opportunities to enhance these already expansive powers. For example, the particular CBP outfit responsible for the abductions in Portland is the Border Patrol Tactical Unit (BORTAC). It is CBP’s version of a SWAT team and it is ordinarily tasked with conducting high risk raids on drug cartel operations near the border. But earlier this year, CBP pushed to take these units off the border and deploy them in “sanctuary cities” to hunt down illegal immigrants. It was a trial run for the current proceedings given that the targeted cities were opposed to their presence and it brought a militarized force round to bear on a process featuring a relatively low risk of violence. It was a questionable decision that seemed to be more about discomfiting political opponents of the administration than a matter of effective law enforcement.

Worse, CBP’s nascent role as a cut‐​rate secret police force that operates at the discretion of the executive branch is merely one manifestation of the creeping, bi‐​partisan paramilitarization of the federal government. During the recent Black Lives Matter protests in Washington, DC, the Trump administration staged a force of at least 1,600 active duty military personnel at bases outside the city. Those troops remained outside. The administration did not need the military to suppress urban unrest when it had paramilitary forces ready at hand. If that sounds extreme, consider that the administration easily gathered some 3,000 non uniformed, heavily armed riot control officers from the Bureau of Prisons, some of whom were used to clear protestors from Lafayette Park so that Trump could stage a photo op in front of a nearby church.

Even the Cato Institute found itself part of the unfolding drama when armored vehicles were stationed outside the building. Cato headquarters had been vandalized during the protests (though the plywood shields eventually installed over the windows were a fairly effective deterrent). Even so, responding to petty vandalism with military vehicles mounting heavy caliber machine guns was a rather incredible and unwelcome escalation. Likewise, Acting Secretary Wolf’s justification for deploying paramilitary units to Portland was a list recounting vandalization of federal property; he didn’t bother to justify an escalation from mostly spray painted graffiti to non uniformed agents shoving people in unmarked vehicles.

The use of Bureau of Prisons personnel in Washington and BORTAC in Portland is just the tip of the spear. The federal government under Presidents from both parties has been adding some 2,500 armed agents to the federal bureaucracy every year since 9/11, amounting to more than 132,000 such officers. 2,300 IRS agents carry weapons like AR‐​15s and P90s, the National Park Service buys thousands of dollars of hollow‐​point bullets each year, and US Fish and Wildlife, afraid of being left out of the fun, obtained silencers for their Glocks. (In their defense, it is hard to sneak up on a fish.)

Most of the 132,000 armed federal agents are based in the DC metropolitan area. While it might be a touch dramatic to call them a Praetorian Guard–given what that evokes of civil instability in the late imperial Roman Empire–it does not take an overactive imagination to think that having the equivalent of a dozen paramilitary divisions in the immediate vicinity of the US capital might be a bad idea for the future of our democracy. Unlike the military with its strict, professionalized chain of command and tradition of avoiding meddling in domestic political affairs, these federal forces serve at the discretion of political appointees and have shown no disinclination against involvement in partisan politics. Consider Washington and Portland—both of which, as it so happens, lie within the 100 mile “border zone”—small trials of how an administration can use paramilitary personnel to repress political dissent. Do we want to entertain even the slightest risk that some future authoritarian executive might try such methods at scale?

July 17, 2020 2:41PM

Why Is NPR Still Obsessing Over Prescription Numbers When They Are Not Associated With Non‐​medical Use or Addiction?

National Public Radio released an investigative report today showing that doctors and dentists are still prescribing opioids for pain management at “rates widely considered unsafe.”

This persistent focus on the number of pills doctors prescribe defies justification in light of the fact that data from the Centers for Disease Control and Prevention and the National Survey on Drug Use and Health consistently reveal no association between prescription volume and the non‐​medical use of prescription opioids or addiction.

And despite the overall prescription volume coming down dramatically since 2012 (the year the volume peaked), overdose rates continue to climb. In fact, the overdose rate climbed as prescription rates came down. We learned this week that overdoses in 2019 are up considerably over the previous year and the situation this year is exacerbated by the COVID-19 crisis.

Meanwhile, what prescription amounts that are “widely considered safe” is a matter for debate. The CDC in 2019 issued a memo claiming policymakers were misapplying and misinterpreting the opioid prescribing guidelines they published in 2016, and reminded policymakers that they were meant to be suggestive, not prescriptive. Around the same time a Department of Health and Human Services Pain Management Best Practices Inter‐​Agency Task Force issued a report calling for the individualization of pain management practices, deferring to practitioners to weigh the risks and benefits when recommending medications and dosages to their patients. And the American Medical Association in June came out against governments imposing prescription and dosage limitations.

NPR should take note of the developments over the past nine to ten years since the press and policymakers adopted the mantra that opioid prescriptions must be brought down to end the overdose crisis and change its focus to the real cause of the overdose crisis: drug prohibition.