Criminal Law and Civil Liberties

January 15, 2021 12:19PM

Transit Unions to DHS: Give America A “No Ride” List

We’re just 15 days into 2021, and the number of really bad, anti‐​liberty policy and legislative proposals are multiplying like mold spores.

To that end, I would direct you to the request by the International Association of Sheet Metal, Air, Rail and Transportation Workers that the Transportation Security Administration (TSA) create a “No Ride” list for passenger rail akin to TSA’s infamous “No Fly” list for the airline industry. From the unions’ press release:

Suspected insurrectionists continue to threaten further violence as the transition to President‐​elect Joe Biden’s administration approaches next week. Some of these have been relegated to the No Fly List overseen by FAA, preventing them from traveling by air, but no such restriction exists for the national passenger rail network. SMART-TD and BLET urge that a “no‐​ride” list that mirrors FAA’s list be enacted immediately.

By all means, lets make passenger rail travel just as hell‐​like as airline travel: insane requirements for removing shoes, non‐​science based limits on liquid carry‐​on items, more expensive, ineffectual screening technology, and of course, even longer delays in being able to board your train and get to your destination. Apparently, union reps have forgotten just how ineffectual and liberty‐​damaging TSA’s VIPR teams were before Trump—in one of his few useful acts as President—tried to kill the VIPR program.

This union proposal naturally begs additional questions: where will it end? Will the union representing Washington Metropolitan Transportation Authority (WMATA) ask for a “No Ride” list for DC’s Metrorail and Metrobus services? After all, since you don’t know who might morph from a protestor to an insurrectionists, better to to simply take any names of the January 6, 2021 insurrectionists (alleged or actual) on the TSA “No Fly” list and get them banned from riding Amtrak, DC Metro, or any other transit system, right?

That our nation’s Capitol building was overrun by at least hundreds seeking to overturn a fair, free, and valid election is clear. The Department of Justice has already created a running, online list of those thus far charged with federal crimes in connection with the insurrectionist event. What we don’t need is yet another due process‐​free, innuendo driven, government run transportation security “list” that gives us another debacle like TSA’s Quiet Skies program, and that further undermines the ability of citizens not wanted for a crime to go about their travel unmolested.

January 11, 2021 4:58PM

Capitol Hill Insurrection Fallout: More Bad “No Fly” List Proposals

In Washington, the sequence leading to bad legislative and policy outcomes in the wake of a crisis is a familiar one. Phase 1 is The Event. Almost 20 years ago, it was the 9/11 attacks, which gave us, among other things, in Phase 2—The Overreaction—the abominable and ineffectual PATRIOT Act and eventually the Transportation Security Agency (TSA) and it’s now‐​infamous “No Fly” list, which has repeatedly snared completely innocent people—including the late Senator Ted Kennedy (D-MA) and Rep. John Lewis (D-GA).

The Event this time is the Capitol Hill insurrection/​mob attack perpetrated by thousands of President Trump’s supporters on January 6. The Overreaction is the request to TSA and the FBI by House Homeland Security Chairman Bennie Thompson (D-MS) that “all individuals identified as having entered the Capitol building” be placed on the “No Fly” list. The proposal is, of course, completely insane.

Don’t misunderstand me. I believe that anyone who engaged in violent acts at the Capitol on January 6 should be prosecuted the full extent of the law under existing federal statutes. What is clearly nonsensical and totally at odds with both the First and Fourth Amendments is the suggestion that just because someone was in the Capitol building at the time of they should automatically be placed on the “No Fly” list.

Should someone who violently broke windows or forced their way into the Capitol building after being warned to cease and desist by U.S. Capitol Police be barred from flying? Yes, because those acts are all violations of federal law. But what about the people who committed trespass on the Capitol that day without harming anyone? Should they also be placed on the “No Fly” list? Or even TSA’s Quiet Skies selectee list? No. The airlines and the FAA know how to deal with disruptive passengers, as the FAA’s warning earlier this week made clear.

What’s needed right now is a reminder that every time a major, security‐​related national trauma takes place—the Pearl Harbor attack, the 9/11 attack, and now the Capitol insurrection/​mob attack by thousands of Trump supporters—the public inevitably demands that Congress “do something” in response, and that congressional response is almost always something the nation regrets later. Just for once, can we actually think before we act?

January 7, 2021 6:31PM

Capitol Police Funding

The attack on Capitol Hill yesterday was disgraceful. It was also remarkable. After all the security breaches at both the congressional complex and White House over the years, and the many large protests in the city, you would think that the Capitol Police would have been better prepared.

The Capitol Police certainly has enough funding to be prepared. The force has 2,300 officers and a $516 million budget to defend two square miles.

The chart shows that outlays for the Capitol Police have soared over the past two decades. In actual or nominal dollars, spending increased from $115 million in fiscal 2000 to an estimated $516 million in fiscal 2021. That equals an annual average growth rate of 7.4 percent, much faster than the 2.1 percent average annual inflation over the period.

The Capitol Police budget is more than the police budgets of Atlanta and Detroit. A watchdog group examined the agency’s activities in posts here and here.

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Spending data is from the federal budget here. The figure for 2021 is the estimate from last year’s budget. A conversation with David Ditch prompted this post. William Yeatman examines the agency here.

January 4, 2021 4:58PM

Drug Lab Misconduct

By Jeffrey Miron and Erin Partin

In 2013, authorities arrested a chemist at a Massachusetts state drug lab for stealing drug samples, falsifying test results, and tampering with evidence. After a multi‐​year investigation, more than 35,000 drug convictions were dismissed and the state was forced to spend over $30 million in restitution and investigation costs.

Now, state officials believe another employee may have similarly tainted evidence.

Massachusetts is not the only state where misconduct by drug lab employees has occurred. Both Montana and California have documented cases of similar behavior. This misconduct has a direct impact on thousands of drug cases, not to mention the financial backlash to the state.

Yet this is a problem that doesn’t need to exist. Ending drug prohibition would eliminate the need for such labs, making it impossible for such misconduct and the associated costs to arise.

December 29, 2020 1:37PM

Trump Cannot Stay In Power By Declaring Martial Law

“There is no role for the U.S. military in determining the outcome of an American election,” Army Secretary Ryan McCarthy and Chief of Staff Gen. James McConville said in a joint statement earlier this month after Michael Flynn, President Donald Trump’s first national security advisor, declared in an interview with Newsmax that Trump could “take military capabilities, and he could place them in those [swing states], and basically re‐​run an election” in those states. Other Trump backers have suggested that he might use a declaration of martial law combined with the powers of the Insurrection Act to overturn Joe Biden’s victory in the November election.

What would happen if a president actually tried these things? The answer, at least in the America we live in today, is that he would fail.

Related Content

Mob Rule is No Path to Liberty

The Cato Institute has long worked to encourage people everywhere to better understand and appreciate the principles of government that are set forth in America’s Founding documents. Among these principles is the peaceful transfer of power after free and fair elections. “The assault on the Capitol is a tragic violation of these principles,” writes Cato President and CEO Peter Goettler. “We condemn these actions in the strongest terms, support the rule of law and the Constitution, and reject the attempts to overturn the results of the 2020 presidential election.”

In a recent article, Bonnie Kristian at The Week quotes me at length on these questions. Martial law, I noted, involves a wholesale suspension of civil liberties, so “military commanders can issue orders to civilians” as well as “arrest and mete out punishment based on tactical needs of war rather than the civilian law on the books.” The only time it has been tried on a national scale was when Abraham Lincoln suspended habeas corpus rights during the Civil War to silence dissenters.

But in Ex parte Milligan (1866), the Supreme Court ruled Lincoln had overstepped his legitimate bounds. This ruling is “key” to understanding the president’s martial law powers today, Olson said. It means “the president cannot simply declare martial law at his whim. There must be a state of invasion or insurrection such that ground is actually contested, and resort to conventional civil courts and authority must have collapsed.” Absent those conditions, the court said in Milligan, martial law is “a gross usurpation of power,” and in fact “can never exist where the courts are open.”

The courts are open now, which means any declaration of martial law — including in the six states Flynn targeted — would be illegal. “Courts would not be afraid to recognize this as reason to strike down acts pretending to martial law authority,” Olson said, just as they haven’t been afraid to smack down specious election challenges. That might not stop Trump, Olson allowed, but it would stop many of the people he’d need to execute this plan. And even if their constitutional oaths did not constrain them, there would be “very real personal consequences for both civilian and military administrators should they go along” with such an unlawful proposal, Olson noted, as career bureaucrats and officers undoubtedly realize. (The Army statement is an indicator of this very understanding.)

Martial law has been ordered in some dozens of other instances, typically of brief and localized effect, as in quelling riots. Following the attack on Pearl Harbor, federal officials placed the territory of Hawaii under martial law through much of the war, but the Supreme Court in the 1946 case of Duncan v. Kahanamoku struck down the authority of military tribunals over civilians, ruling that even the very real perils arising from World War Two did not deprive Americans of the protections of the Constitution. “Our system of government is the antithesis of total military rule, and its founders are not likely to have contemplated complete military dominance within the limits of a territory made a part of this country and not recently taken from an enemy.”

More from Bonnie Kristian’s article:

The Insurrection Act gives Trump no additional leeway here. It does provide an exception to the general prohibition (under the Posse Comitatus Act) on using federal troops to enforce domestic law. But those exceptions — which typically involve violent insurrection — aren’t applicable in this scenario. Furthermore, Olson told me, “there is a separate set of laws in which Congress has not only disallowed, but even chosen to make a crime, actions by federal troops or officers that interfere with the right to vote.”

The “thing to remember about the Insurrection Act,” Olson added, “is that it doesn’t allow federal troops to enforce anything but already‐​prevailing federal, state, and local law. It does not authorize martial law in the sense of deprivation of ordinary civil liberties, special tribunals, irregular punishment, street justice, cutting off resort to the courts, etc.” (In 2006, the annual National Defense Authorization Act included a provision which changed that, allowing the president to impose martial law via the Insurrection Act. Uproar was widespread, however, and in early 2008, Congress repealed the change.) So even if the Insurrection Act were applicable (which it isn’t), and even if there weren’t additional legal protections against federal military meddling in state‐​administrated elections (which there are), deploying troops under this authority still wouldn’t result in martial law.

Both Ex Parte Milligan and Duncan v. Kahanamoku are full of the sort of ringing language about liberty that should inspire every patriot and constitutionalist. Writing for the majority in Duncan, Justice Hugo Black quoted the words of the earlier (1879) case of Dow v. Johnson in noting that “the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is that the law shall alone govern, and to it the military must always yield.”

December 24, 2020 9:57AM

Why Are People So Mad at Police?

Unless you've been hibernating this year (for which you could hardly be blamed), you've probably noticed that some people are really angry at cops these days, whereas other people—mostly conservatives and members of law enforcement—are mystified by this and consider the anger almost entirely misplaced. As explained below, I think the anger is largely justified, but for reasons that do not receive as much attention as they should. Perhaps it boils down to the simple fact that it is immoral to enforce morally indefensible laws. Here's what I mean by that.

Police represent the front line of our criminal justice system. If, as I have argued here before, that system is fundamentally rotten and in certain respects morally indefensible, then people will naturally direct their ire towards those most responsible for dragging people into it. Human beings come hardwired with various cognitive biases and moral intuitions. Among the most powerful of those is the tendency to condemn those who violate certain taboos, including particularly the rule against harming other people without sufficient justification. If a strong case can be made that police officers regularly transgress fundamental moral precepts—while disclaiming any responsibility for doing so—then continued loss of confidence and corresponding anger towards them becomes much easier to understand.

Before considering whether people are legitimately angry at police as an institution, we should keep two points in mind. First, people who behave immorally don't get a free pass simply because they also do good. In other words, just because you invented the polio vaccine doesn't mean it's OK to steal candy from children whose lives you saved. Second, people don't have to be unequivocally right in order to be justifiably angry. Consider studies from last year that reviewed cops' Facebook pages and found a shocking amount of explicitly racist commentary. While that certainly doesn't support the proposition that most cops are racists, it raises perfectly valid questions about why the system seems so tolerant of people who express those views and why they're not hounded out of the vocation by their fellow officers.  

So, is it reasonable to perceive that police too often violate the moral precept against harming other people without sufficient justification? Unfortunately, the answer is plainly yes. And that's not all. Besides inflicting unjustifiable harm, police are widely perceived as being frequently deceitful and unwilling to take responsibility for their misdeeds—more taboos that have been universally condemned throughout recorded history. Members and supporters of law enforcement who wish to restore public confidence in and esteem for police should stop dismissing these perceptions out of hand and instead consider whether they might have some basis in fact. 

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December 23, 2020 11:54AM

Going After Scapegoats Is Easier Than Confronting The Truth

Yesterday the Department of Justice filed suit against the giant retailer Walmart, accusing it of fueling the opioid crisis by encouraging its pharmacists to fill prescriptions–legally written by health care practitioners licensed by the Drug Enforcement Administration–they should have suspected of being inappropriately prescribed.

The Justice Department seems uninterested in the fact that there is no correlation between the number of opioid prescriptions and the non‐​medical use of prescription pain reliever or the development of opioid use disorder. And while the number of opioid prescriptions has dropped 57.5 percent since 2010, the overdose rate has continued to climb, soaring to record high levels in the latest report from the Centers for Disease Control and Prevention.

In its complaint, the Justice Department continues to conflate “physical dependency” and “addiction,” seemingly ignorant of the difference between the two. It also apparently ignores the words of Drs. Nora Volkow and Thomas McLellan of the National Institute on Drug Abuse who stated in a 2016 article in the New England Journal of Medicine:

Unlike tolerance and physical dependence, addiction is not a predictable result of opioid prescribing. Addiction occurs in only a small percentage of persons who are exposed to opioids — even among those with preexisting vulnerabilities. Older medical texts and several versions of the Diagnostic and Statistical Manual of Mental Disorders (DSM) either overemphasized the role of tolerance and physical dependence in the definition of addiction or equated these processes (DSM-III and DSM-IV).

Research shows the overdose rate has been climbing exponentially since at least the late 1970s, long before the creation of the potent prescription opioid OxyContin in 1996, and continues to climb. The only thing that has changed over the years has been the type of drug that has predominated among the overdose deaths. As Josh Bloom, the director of chemical and pharmaceutical science at the American Council on Science and Health, and I recently pointed out, the top killers are now fentanyl, heroin, cocaine, and methamphetamine. In fact, prescription opioids have consistently been a very small component of the drugs involved in overdose deaths for quite some time. We explain that policymakers’ obsession with reducing opioid prescribing has converted the “opioid crisis” into a “street drug crisis.” It has also inflicted great harm on acute and chronic pain patients, driving some, in desperation, to the dangerous black market in search of relief.

While policymakers and prosecutors exact tribute from scapegoats that are soft targets, they let the true offender get away: drug prohibition.