Constitution, the Law, and the Courts

July 13, 2006 4:18PM

Have We Learned Nothing from “SchoolHouse Rock”?

“I’m just a bill, yes I’m only a bill, and I’m sittin’ here on Capitol Hill…”


Back when dinosaurs roamed the earth and cartoons were confined to Saturday morning broadcast programming, kids learned about the separation of powers (among other things) from the “SchoolHouse Rock” toons.


Apparently some future New Jersey lawyers weren’t tuned in.


The recent lawsuit about which Cato’s Neal McCluskey has been writing asks the court to create a school voucher program in New Jersey as a remedy to the state’s deficient public school system. Right ends, wrong means. Courts are for legal interpretation; legislation is for legislatures.


There’s little doubt that New Jersey is failing to live up to its constitutional promise to provide a “thorough and efficient” education. Should the court so rule, it will be up to the legislature to fix the problem, and introducing a universally accessible free education marketplace is certainly the best solution they could implement.


But it’s their job to implement it, not the court’s.

July 12, 2006 1:51PM

Fraudulent Identity Fraud Statistics

Slate has a great piece up on the use and misuse of statistics by reporters.

The magic number for journalists covering the identity theft beat has been $48 billion — the estimated annual losses suffered by identity theft victims — which carries the Federal Trade Commission’s imprimatur. … Fred H. Cate, a law professor and director of Indiana University’s Center for Applied Cybersecurity Research, notes that if the estimate were accurate, it would wipe out up to half of the banking industry’s $103 billion profits in 2005. “If those numbers were true, we’d have a banking crisis on our hands,” he says.

When I worked on the Hill, I came to recognize a similar dynamic at play: There were things everyone believed and no one questioned. I called them “political facts” because the source of the fact was consensus rather than any measurement or observation. Repetition of political facts in Members’ speeches and floor statements just made them all the more true.


A political fact relating to identity fraud is that it is a stranger crime, often a product of data breaches, that is conducted mainly over the Internet. It sometimes is, but in my book, Identity Crisis, I point out the results of an actual study showing that:

[M]ore than a third of individuals who had been impersonated in a true identity fraud knew … who the perpetrator was. And in more than half of those cases, the perpetrator was a family member or other relative. Other prominent perpetrators of identity frauds are people in companies or financial institutions with access to personal information, as well as friends, neighbors, or in‐​home employees of impersonation victims. So much for the Internet being the cause of identity fraud, though it certainly plays a role in some cases.

Alas, … my source was a Federal Trade Commission study.

July 12, 2006 10:01AM

“Tyranny is defined as that which is legal for the government but illegal for the citizenry.”

That quote, commonly attributed to Thomas Jefferson, comes to mind when contemplating yesterday’s vote in Congress to ban Internet gambling.


It passed, 317 – 93. What’s interesting is that Rep. John Conyers introduced an amendment that would have removed the exemption the bill grants to allow states to put their lotteries online. That amendment overwhelmingly failed.


Which means that a good number of Congressmen, most of them Republican, voted to ban Internet gambling sites operated by private citizens, but voted to allow them when operated by the government.

July 11, 2006 8:18PM

Fake IDs Save Lives in Iraq

A fascinating AP report says that Iraqis are using fake IDs in light of the recent growth in sectarian killings. The major groups in Iraq are not distinguishable by physical traits, but they are by name. To avoid being killed, people are getting false identification cards:

Surnames refer to tribe and clan, while first names are often chosen to honor historical figures revered by one sect but sometimes despised by the other. 


For about $35, someone with a common Sunni name like Omar could become Abdul‐​Mahdi, a Shiite name that might provide safe passage through dangerous areas.

This illustrates very well how genuinely complex security can be. At any time, the relevant authorities in Iraq could have decreed that all people get (as near as possible) forgery‐​proof biometric ID cards and carry them at all times — a great way to batten down a country, right? 


Doing so would have fed directly into the strategy being used by the enemies of peace and security in Iraq today: setting up fake checkpoints and killing people who arrive there members of the wrong sect. Identity cards had a role in the Rwandan genocide just over 10 years ago, as well.


Those who believe that identity cards are a simple route to good security, well, they suffer what is so rightly known as the fatal conceit. Central planning that deprives people of control over their lives can be deadly – literally – in surprising and unpredictable ways.


Thank goodness for the fake ID outlets in Iraq today, and thank goodness the promoters of “secure ID” in the United States didn’t take their message to Iraq.


The tradeoffs involved in identification are discussed in my book, Identity Crisis.

July 11, 2006 3:09PM

Geneva and Guantanamo

The news wires are saying there has been a major policy development concerning Guantanamo Bay. The Bush administration is now changing its stance with regard to the Geneva Convention, reports say.


The White House says today’s announcement does not reflect a change in policy. That is probably right. That is, the Supreme Court ruling in Hamdan established some new law with respect to the application of Geneva to detainees and the Pentagon is now simply tinkering with some policies to comply with that ruling.


Because Clintonian word games still pervade the capital, however, one must scrutinize these policy announcements very closely. For example, whatever the Pentagon is saying about Guantanamo today may be limited to the Pentagon and to the men held at Guantanamo Bay. I say that because in 2002, President Bush issued a directive that pledged humane treatment to all prisoners in U.S. custody. Attorney General Alberto Gonzales later admitted in 2005 that that directive did not apply to officers of the CIA and other nonmilitary personnel. 

July 11, 2006 2:34PM

Orrin Hatch Backs Drug Legalization

Who would’ve thunk it? Turns out that former Senate Judiciary Committee chairman Orrin Hatch (R‑Utah) doesn’t believe in jail terms for drug users. At least I guess that’s what this story means:

U.S. Sen. Orrin Hatch of Utah, a musician in his own right, helped secure the release of Atlanta R&B producer Dallas Austin from a Dubai jail after a drug conviction, the senator’s office confirmed Saturday.


In a statement released through his staff, the conservative Republican said he was contacted by Austin’s attorneys, then called the ambassador and consul of the United Arab Emirates in Washington on Austin’s behalf.


A Grammy winner who has produced hits for Madonna, Pink and TLC, Austin was arrested May 19 and convicted of drug possession for bringing 1.26 grams of cocaine into Dubai.

Surely Hatch thinks regular old Americans are due the same consideration as a Grammy‐​winning singer. He’d advocate the release of any American convicted of possessing 1.26 grams of cocaine, right?


Or are politicians hypocrites? Could it be that they think average Americans like Richard Paey should go to jail for using large amounts of painkillers, but not celebrities like Rush Limbaugh? Could it be that they laugh about their own past drug use while supporting a policy that arrests 1.5 million Americans a year, as a classic John Stossel “Give Me a Break” segment showed? (Not online, unfortunately, but you can read a commentary here.)


Putting people in jail for using drugs is bad enough. Putting the little people in jail while politicians chortle over their own drug use and pull strings to get celebrities out of jail is hypocrisy on a grand scale.

July 10, 2006 12:22PM

UK National ID in Collapse — U.S. National ID to Follow?

The Sunday Times (U.K.) reports that “Tony Blair’s flagship identity cards scheme is set to fail and may not be introduced for a generation.” The Times cites leaked e‑mails reflecting senior officials’ belief that the plan to subject the U.K. population to the regimentation of a national ID system is falling apart. Even a backup, scaled‐​down national ID card isn’t “remotely feasible,” according to the e‑mails cited by the report. Ministers who are pressing ahead with the plan are “ignoring reality.”


Similar e‑mails may well be floating around the U.S. Department of Homeland Security, which will be issuing regulations to flesh out the REAL ID Act this summer this fall after November 7th. (No bureaucrat with an ounce of political acumen would drop a $9‑billion‐​dollar unfunded surveillance‐​mandate before the mid‐​term election.)


This is not bad news. A national ID system is useful for controlling a law‐​abiding population, but not useful for securing against law‐​breakers, particularly committed threats like terrorists — unless it is part of a total surveillance system.


The failure to implement a national ID system in the U.S. would represent little loss to the nation in terms of security, and a substantial gain in terms of preserved freedom and autonomy. All this is discussed in my new book, Identity Crisis: How Identification is Overused and Misunderstood.


Unlike the U.K., where a national ID is apparently a project identified with Tony Blair, the Bush Administration does not have to look for a face‐​saving alternative. The U.S. national ID was not a Bush Administration project, but something it accepted in a political bargain. The Administration can now (rightly) declare it impossible to implement and inconsistent with American values, then work with Congress to repeal the REAL ID Act.