Constitution, the Law, and the Courts

June 24, 2006 5:45PM

Protecting Your Privacy

As I purchased $10 worth of trinkets at the Container Store, the clerk began the transaction by saying, “May I have your phone number?” I replied, “Uh, no.” And that was that; without any objection he rang up the transaction. 


One way people can protect their privacy is by saying “no” more often. Companies ask for information, but they often don’t require it.


A couple of years ago, a guard at the White House looked at my driver’s license and told me, “You shouldn’t use your Social Security number as your driver’s license number.” So there’s another tip: ask the DMV to assign you a random number for your license.


None of this, of course, will stop your bank or phone company from giving up your information when the feds ask. But there are steps everyone can take to keep our lives just a little more private.

June 23, 2006 4:42PM

Conservatives on Executive Abuses

Here's an interesting anecdote bearing on the dangers of unchecked surveillance powers. And it comes from a somewhat unlikely source: the Heritage Foundation's Lee Edwards, a historian of the conservative movement and biographer of Barry Goldwater. 

Edwards tells the story of the FBI, at Lyndon Johnson's request, placing bugs on Barry Goldwater's campaign plane:

The bureau's illegal surveillance was confirmed by Robert Mardian, when he was an assistant attorney general in Nixon's first term. During a two-hour conversation with J. Edgar Hoover in early 1971, Mardian asked about the procedures of electronic surveillance. To Mardian's amazement, Hoover revealed that in 1964 the FBI, on orders from the Oval Office, had bugged the Goldwater plane. Asked to explain the blatantly illegal action, Hoover said, "You do what the president of the United States orders you to do."

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June 23, 2006 12:30PM

It’s Not Just About No‐​Knocks

Jacob Sullum writes:

Hudson v. Michigan, the recent decision in which the Supreme Court said evidence from a search in which police failed to follow the "knock and announce" rule is admissible in court, ostensibly hinged on how close the connection between a Fourth Amendment violation and the discovery of evidence must be to trigger the exclusionary rule. The dissenters argued that the failure of police to wait more than a few seconds for the suspect, Booker Hudson, to answer the door rendered the whole search invalid, making the evidence police obtained "fruit of the poisonous tree." Writing for the five-justice majority, Antonin Scalia said the exclusionary rule did not apply in this case because the Fourth Amendment violation was not essential to the discovery of the evidence. Had police waited, say, 15 seconds and given Hudson the opportunity to answer the door, Scalia reasoned, they still would have found Hudson's drugs and gun.

Yet as Scalia also noted, if the police believed that wasn't the case, that waiting 15 seconds would have allowed Hudson to get rid of the evidence, the "knock and announce" rule would not have applied. So the nexus between barging in and finding the evidence does not really matter. Whether or not a knock-and-announce violation is necessary to preserve evidence, the evidence can be admitted an easy rule for police to remember but not one that is likely to encourage respect for the knock-and-announce requirement.

This is one of the inherent contradictions in the policy of no-knocks and the use of SWAT teams.

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June 22, 2006 4:32PM

I Voted for What?

Rep. John McHugh (R‑NY) is an important man in Congress. He serves on the House Armed Services Committee and chairs its Military Personnel Subcommittee which spends $85 billion annually.


Whether he knows how that money is spent is an open question. The Hill reported today that McHugh voted for a defense authorization bill that included a provision “he said he philosophically opposed.” (The provision overrode a federal court’s decision in a dispute between National Guard members and the government about who should pay for correspondence courses).


McHugh apparently had not read the defense authorization bill. Never mind, everyone does it, as The Hill reports, “It is no secret that some — if not most — lawmakers vote on bills that they do not read in their entirety.” McHugh notes that “hundreds and hundreds” of provisions come through, and he relies on his staff “for judgment on more routine matters.”


Members of Congress are elected to work on behalf of their constituents. How can they do that if they don’t read the bills they pass? It is true that the government is so large that supervising how well past laws are being implemented, much less reading bills, takes a lot of time and effort. Maybe more time and effort than even a hard‐​working member has.


Here’s a thought for members of Congress: maybe the fact that you don’t read the bills you vote for means the government has grown well beyond anyone’s control. Maybe — and this will be shocking to you — the government is too big.

June 21, 2006 12:05PM

Policing the Police

Last week the Supreme Court said that it would be proper to just assume that unlawful police behavior would be dealt with appropriately by the authorities.

Item: One Frank Jude is bringing a civil suit against the City of Milwaukee because of the actions of its police officers.

Jude accompanied some people to the house-warming party of a police officer. After a while, Jude decided to leave. He was then accused of stealing a police officer's badge and then all hell broke loose. Jude was swarmed by off-duty cops who beat him to a pulp. When Jude's friends called 911, the on-duty cops arrived and they proceeded to take Jude into custody for resisting arrest.

The charges against Jude were quickly dropped as it became apparent that he was the victim, not the criminal. Now the investigation had to start over and no one in the government was anxious to handle it.

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June 21, 2006 10:41AM

Scholar Scalia Cites in Hudson Not So Thrilled to Have Been Cited by Scalia

Actually, “not so thrilled” is putting it mildly.


I just spoke with Prof. Sam Walker, one of the most respected criminologists in the country, and an expert on police tactics and procedures. Justice Scalia cites Walker in his opinion in Hudson, quoting him directly on page 12:

There have been “wide‐​ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taiming the System: The Control of Discretion in Criminal Justice 1950 – 1990, p. 51 (1993).

Scalia preceded the Walker cite with this thesis sentence:

Another development over the past half‐​century that deters civil rights violations is the increasing professionalism of police forces, including a new emphasis on internal discipline.

Walker tells me he learned that Scalia had cited his work, “to my horror.”


Walker adds, “Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away.”


Walker says political leadership, internal procedures, media oversight, and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important as well, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.


Walker also says his research focused on conventional policing, not drug policing. The latter, he says, “is a special kind of policing,” and says he would agree that the direction of drug policing of late (which of course was what the Hudson case is all about) does raise significant civil liberties concerns. One might also note that Walker’s research for that particular book ended in 1990, sixteen years ago.

June 21, 2006 10:34AM

Free Speech Safe For Now

Congressional Quarterly reports that the attack on 527 groups has ground to a halt. As you recall, 527s are organizations created by the tax code. They are used to raise and spend money on elections campaigns. 527s have to disclose their contributions, but they are not bound by other aspects of federal campaign finance law, most notably, contribution limits. 527s helped John Kerry a lot in 2004. House Republicans, though having opposed restrictions on campaign finance for years, have been trying to eliminate 527s since the 2004 campaign. Earlier this year, it looked like they might do so.


Now things look better for those of us concerned with free speech. The House remains eager to get rid of 527s (as part of a “lobbying reform” bill), but the Senate will not go along. Why not? Senate Democrats know what’s up, and with the exception of Russ Feingold, might vote against a lobbying bill that eliminates 527s. So that’s 44 votes against the bill. Seven Senate Republicans also told their leader, Sen. Frist:

As Republicans, we strongly believe in freedom, including freedom of expression and association. We campaigned for office on the principles of a limited and constitutional government. As elected officials we took an oath of office to “support this Constitution.” The First Amendment’s dictates are a model of clarity: “Congress shall make no law… abridging the freedom of speech.” Yet the House of Representatives approved a bill (H.R. 513) that proposes new restrictions on speech about politicians and policies to be enforced under the threat of criminal penalties.

The seven Republicans then threatened to support a Democratic filibuster against the lobbying bill. Who knows? Those 7 plus the Democrats might even make up a majority in the Senate?

So partisanship and principle have worked together well to protect freedom of speech. For now.

(The seven Republican senators are: George Allen, Sam Brownback, Tom Coburn, Jim DeMint, Michael Enzi, John Sununu and David Vitter). [pdf]