Topic: Law and Civil Liberties

Government Can’t Shut Down Public Recording That Doesn’t Interfere with Law Enforcement

A group called People Helping People heard of potential civil rights abuses and harassment occurring at Border Patrol checkpoints in Arizona—interior ones, not right at the border—so started a campaign to monitor such activity. The Border Patrol then decided to prohibit any recording within 150 feet of their location, which includes the public roadside.

A federal district court found that the new rule was a valid time, place, or manner restriction on First Amendment-protected activity. Cato, with the assistance of the UCLA Law School First Amendment Clinic and noted scholar Eugene Volokh, has filed an amicus brief asking the U.S. Court of Appeals for the Ninth Circuit to reverse that ruling.

Recording of law enforcement officers engaged in the public performance of their duties promotes the free discussion of government affairs. The roadside in this case is a “traditional public forum” of the sort that the Supreme Court has held to be required to be open to First Amendment-protected activities. The Border Patrol even got a permit that requires that the facilities be “maintained in a manner that will not interfere with the reasonable use of the public right-of-way.” The government cannot choose to shut down such a forum when it is still being used as a public thoroughfare.

There is also evidence that the Border Patrol closed this area specifically in retaliation for People Helping People’s First Amendment activities; new barriers were added within hours of the start of the monitoring program, making it significantly harder to film, and passers-by were told that the barriers were there only to exclude protesters.

The restriction is also not valid because it does not leave open “alternative channels of communication,” as the Supreme Court has required. In McCullen v. Coakley (2014), the Supreme Court struck down a 35-foot buffer zone around an abortion clinic because it burdened more speech than was necessary to advance the government’s interest. A 150-foot buffer zone burdens even more speech, entirely preventing the recording of law enforcement officers, rather than merely regulating the means of doing so.

Even if this were not a public forum, the Border Patrol’s policy constitutes viewpoint discrimination because it allowed observers who were critical of People Helping People to enter the enforcement zone and record. At base, this restriction is unreasonable because there is no articulable reason to prohibit recording from a public roadside that doesn’t interfere with the Border Patrol’s activities.

When the Ninth Circuit takes up Jacobson v. Department of Homeland Security later this spring/summer, it should reverse the district court and strike down the Border Patrol’s buffer zone.

GAO Weighs In On “Countering Violent Extremism”

The ongoing controversy and litigation over the Trump administration’s “Muslim ban” has reignited a debate that has raged since the 9/11 attacks: Who commits more domestic terrorism–violent Salafists or traditional “right wing” extremists? According to a Government Accountability Office (GAO) report, it’s the latter and by a very wide margin. From p. 4 of GAO’s report:

Of the 85 violent extremist incidents that resulted in death since September 12, 2001, far right wing violent extremist groups were responsible for 62 (73 percent) while radical Islamist violent extremists were responsible for 23 (27 percent). 

But as researchers at the Georgia State recently reported, media coverage of terrorist incidents makes it seem as if terrorism is almost exclusively perpetrated by Muslims:

We examined news coverage from LexisNexis Academic and CNN.com for all terrorist attacks in the United States between 2011 and 2015. Controlling for target type, fatalities, and being arrested, attacks by Muslim perpetrators received, on average, 449% more coverage than other attacks. Given the disproportionate quantity of news coverage for these attacks, it is no wonder that people are afraid of the Muslim terrorist. More representative media coverage could help to bring public perception of terrorism in line with reality.

That incident-media reporting disconnect is matched by another: the notion that Arab/Muslim-Americans are more susceptible to radicalization, and thus to becoming terrorists, and that there are a discreet set of reliable indicators that will tell authorities who is or is not more likely to become a terrorist. 

The same month the Georgia State researchers released their terrorism-media bias findings, the Brennan Center released a report on the state of the debate and federal “countering violent extremism” (CVE) programs. Citing dozens of empirical studies and recognized experts in the fields of criminology, psychology, and intelligence, the report states “Extreme or radical views are often assumed to lie at the heart of terrorism. But evidence shows that the overwhelming majority of people who hold radical beliefs do not engage in, nor support, violence.”

Will Congressman Tom Marino be the Trump Administration’s Drug Czar?

CBS reports that President Trump plans to name Congressman Tom Marino (R-PA) to head the Office of National Drug Control Policy, an office colloquially known as the federal government’s “Drug Czar.”

Rep. Marino has a long history of taking a hard line on the drug war. He voted against the Rohrabacher-Farr Amendment that barred the Department of Justice from spending federal funds to prosecute state-legal medicinal marijuana operations. The amendment, which has passed several times with bipartisan support, allows state medical marijuana industries to function without the constant fear of federal prosecution. Rep. Marino also voted to prevent Veterans’ Affairs doctors at facilities in states with legal marijuana from prescribing medical marijuana to their patients.

While the Drug Czar has a limited impact on policy, the expected nomination of Rep. Marino is another red flag for marijuana reform advocates.

44 states and the District of Columbia allow some form of legal cannabis consumption, including eight states (and D.C.) which have legalized the recreational use of marijuana. The dire predictions of drug warriors in those states have not come true.

As we’ve noted before, Donald Trump campaigned on a relatively moderate platform regarding marijuana legalization, but his choices for key drug policy positions in the administration continue to raise the specter of a federal crackdown on marijuana reform efforts.

Of course the drug war isn’t just about marijuana.  A new Cato policy analysis from Christopher J. Coyne and Abigail R. Hall demonstrates how four decades of a hardline approach to drug policy in America have failed. 

With a growing heroin and opioid epidemic, it’s time to ditch the failed prohibitionist policies of the drug war. Countries like Portugal have successfully abandoned the militarized approach to drug policy; it’s time for the United States to do the same. 

Unfortunately, President Trump appears to be moving in the wrong direction.

Weak Legal Pretext for Trump’s Drive-By Tomahawking

I’m beginning to understand why Cato’s Michael Cannon is frequently found tearing his hair out over Politifact, the Tampa Bay Times project ostensibly devoted to “sorting out the truth in politics.” When I look at how badly they’ve botched issues involving constitutional war powers, I feel his pain.

On Friday, the fact-checking organization weighed in on the legal debate over President Trump’s April 6 bombing of a Syrian airfield, with two essays concluding it was A-OK, constitutionally. “In some cases, people saying Trump needed congressional approval have gone too far” Politifact’s Lauren Carroll pronounces. For instance, Rep. Marc Pocan’s (D-WI) claim that there’s “no legal basis” for the strikes rates a full-on, needle-in-the-red “FALSE” on P-fact’s patented “Truth-o-Meter.” Tom Kertscher of Politifact Wisconsin asserts that: “For limited military activities like the missile strike, presidents can send in forces without approval from Congress.” You see, while the president may not have the legal authority to unilaterally launch a full-scale war, he can—if he thinks it’s a good idea, and assures himself it won’t bog us down—order up acts of war that don’t rise to the level of war: a light dusting of cruise missiles—a micro-aggression, constitutionally speaking.

What’s the legal basis for that? Politifact takes nearly 2,000 words to explain it all to you, but their answers are pretty thin: 1. Maybe the commander-in-chief clause?; 2. Other presidents have gotten away with stuff like this in the past; 3. Their lawyers say it’s ok; and 4. the 1973 War Powers Resolution “creates a process to act first and ask for permission later.” I rate those claims 1. False; 2. Irrelevant; 3. Nice try; and 4. Pants on Fire. 

Per Kertscher, “Experts agree that in limited instances, such as the Syrian missile attack, a president has legal authority provided in the Constitution as commander-in-chief.” But that clause, as Hamilton explained in Federalist 69, merely makes the president “first General and admiral” of US military forces, and does not extend “to the DECLARING of war.” And “experts” who believe it empowers the president to launch sudden attacks in the absence of an imminent threat are in the minority. Over at the Lawfare blog, Fordham’s Andrew Kent sums up the legal consensus: “at the core of the question—under the original meaning of the Constitution, who has the power to decide to initiate foreign war, the president or Congress?,” he writes, “the weight of evidence now tilts so strongly toward one view that the debate should be considered over. Under the best reading of the original understanding of constitutional war powers, President Trump’s strike on Syria was patently unconstitutional.”

That the strike was “limited,” and not the opening salvo in a full-scale war doesn’t make a constitutional difference. If it did, leading war powers scholar Michael Ramsey asks, then “why did virtually everyone in the immediate post-ratification era think that limited naval warfare, as against France in the Quasi-War, required Congress’ approval?” That included the bellicose, pro-executive Hamilton, who acknowledged that for President Adams to go beyond defensive acts protecting American shipping would “fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.” Our first president even doubted his authority to take unilateral action against hostile Indian tribes, writing that “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

April 8, 1952: President Truman Seizes The Steel Mills

This week marks the 65th anniversary of what was to become a turning point in constitutional history, President Harry S. Truman’s order seizing the nation’s steel mills during a labor dispute. Allen Pusey has an article on the episode at the ABA Journal

The case was to result in the Supreme Court’s 6-3 decision later the same year in Youngstown Sheet & Tube v. Sawyer, rebuking Truman for his lawless action. It was one of American history’s key wins for the successful assertion of a Constitutional rule of law that binds the executive branch as against claims of inherent emergency power.

But Truman’s audacious behavior was itself based on the adventures in Caesarism of earlier presidents going back at least to Woodrow Wilson, and especially those of his immediate predecessor, Franklin D. Roosevelt. Among other wartime acts of seizure defended on national security rationales, Roosevelt had sent in armed troops on Dec. 27, 1944 to seize (on grounds of defiance of war labor advisories) the Chicago-based catalog and retail company Montgomery Ward. Known for its clothes and household items, Montgomery Ward was almost no one’s idea of a vital war industry. But its head, businessman Sewell Avery, had made himself a leading thorn in FDR’s side in opposition to the President’s New Deal policies. A famous photo showed Sewell Avery being carried bodily out on the street by military men while sitting in his executive chair. 

Truman’s lawyers pointed to the various earlier seizures to back their view that a President simply must possess such powers as chief executive and commander in chief, certainly in wartime. (The Korean War was in progress.) Pusey: 

…the government pressed the issue of constitutional authority. Before an astonished federal judge, lawyers argued that a president has unlimited power in a national crisis and the power to define that crisis. That executive authority had been ratified, they said, by decades of judicial silence on the matter.  

Judge David A. Pine’s ruling was blunt: “Apparently, according to [the government’s] theory, several repetitive, unchallenged, illegal acts sanctify those committed thereafter. I disagree.”

When the case reached the high court, it was the concurrence by Justice Robert Jackson – himself a New Dealer – that was to go echoing down as one of the Court’s great pronouncements: 

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power… 

This is a story that could easily have had an unhappy ending. Truman apparently expected to win the showdown, and the Court itself was full of New Dealers, many of whom had shown much deference to the government. Instead, the steel seizure cases came to stand as a milestone in constitutional law, making clear that claims of emergency, even in wartime, do not justify whatever assertions of arbitrary power a President may care to make. That’s worth celebrating these many years later. 

Targeting Gun Owners Is Unconstitutional

California law generally bans the possession of a gun within a school zone. For many years, however, both retired peace officers and those with a license to carry concealed weapons were exempted from this ban. Then in 2015, a bill was proposed that would have eliminated both of these exceptions. But after extensive lobbying by interest groups aligned with federal workers and police officers, the bill was amended to remove only the exception for concealed-carry licensees.

Dr. Ulises Garcia is one such license holder, who obtained his license after receiving threats against himself from a former patient. After the change in the law, Garcia can no longer carry his weapon for protection when attending school events with his family. Garcia and a group of other plaintiffs have sued, arguing that the differing treatment afforded to retired peace officers and concealed-carry license holders violates the Fourteenth Amendment’s guarantee of the equal protection of the laws. The federal district court rejected their claims, and they have now appealed to the U.S. Court of Appeals for the Ninth Circuit. Cato has filed an amicus brief supporting Garcia and urging that the district court be reversed.

In rejecting Garcia’s equal-protection arguments, the district court fundamentally erred in its application of an important Supreme Court test. Legislation that treats two groups unequally must be struck down if the enacting legislature was motivated by an impermissible purpose. This includes enacting a law solely to harm a politically unpopular group at the expense of a popular and powerful one. Yet despite plenty of evidence that this is exactly what occurred here, the district judge dismissed the “improper motivation” claim in a single paragraph, writing that the court could not find evidence of bad motives in the “legislative history of the Act” and that it could not rule for Garcia without “evidence of explicit legislative intent to cause harm to civilian gun owners.”

This approach dangerously narrows the universe of evidence that judges must examine to determine legislative motivation. As we explain in our brief, the Supreme Court has consistently examined all available evidence in this search, not just the narrow record produced by legislative history. Relying only on floor statements and committee reports, as the district court did, would allow legislators to easily hide their true motivations by simply holding their tongues. Actions speak louder than words, and in this case the actions of the law itself are evidence that its true motivation could not have been good-faith policy concerns.

When the Ninth Circuit hears Garcia v. Becerra later this spring, it should apply the correct test, examine all available evidence, and strike down this unequal treatment of a politically unpopular group.

Border Patrol Seeking Facial Recognition Drones

During his campaign, President Trump said that he wanted drones to patrol the border 24/7. Customs and Border Protection (CBP), a Department of Homeland Security (DHS) agency, has used drones originally designed for foreign battlefields in order to conduct border surveillance, although these efforts have hardly been efficient. Federal solicitation documents reveal that DHS is looking to smaller drones with facial recognition capabilities. This ought to concern Americans who value civil liberties.

Before unpacking why plans for CBP facial recognition drones are disquieting, it’s worth outlining what kind of capabilities DHS is looking for.

The solicitation notice states the following:

This OTS [Other Transaction Solicitation] call seeks novel sUAS [small unmanned aerial system] capabilities and technologies to augment CBP and USBP [U.S. Border Patrol] mission capabilities. In particular, DHS is interested in technologies and solutions that support USBP agent activities, including enhanced overall situational awareness or support during distinct events, such as detection, tracking, interdiction, and apprehension, and search and rescue (SAR) operations. USBP agents operate day and night in diverse and extreme environments across thousands of miles of the nation’s international land borders and coastal waters. Agents must patrol remote areas, often with significantly limited mobility, visibility and communications. Additionally, agents are often required to traverse rough terrain on foot while carrying large amounts of equipment and, with limited intelligence and support, resolve encounters with unknown and potentially hostile actors. DHS seeks sUAS solutions that can augment USBP capabilities in such conditions.

Because of the “very positive/robust response” to this solicitation, DHS is closing the OTS call early, with an April 27th deadline now in place.

The solicitation lists required sensor capabilities for the drones, including, “Provides a surveillance range of 3 miles (objective),” “Able to track multiple targets persistently,” and “Identification of humans via facial recognition or other biometric at range.”

Later on, the same document notes:

the sensor technology would have facial recognition capabilities that allow it cross-reference any persons identified with relevant law enforcement databases. The data gathered via the sensors would provide information to USBP agents including the presence and extent of potential threats and support the ability of the agent to determine an appropriate response.

If you’re an American adult reading this there is a good chance that your facial image is in one of these “relevant law enforcement databases.” A 2016 report published by Georgetown Law’s Center on Privacy and Technology revealed: “One in two American adults is in a law enforcement face recognition network.” A Government Accountability Office report from last year found that the Federal Bureau of Investigation’s facial recognition system has access to more than 411 million facial images, including the driver’s license photos from sixteen states.

When considering CBP’s activities we shouldn’t only be thinking about America’s land borders. Current law allows CBP officials to stop and search vehicles within 100 miles of America’s external boundary in order to prevent illegal immigration. Roughly two-thirds of Americans live in this so-called “Constitution-free” zone. Although DHS’ solicitation mentions facial recognition drones being used as part of border patrol we should be prepared for them to make appearances at interior checkpoints as well as at ports of entry.