Topic: Law and Civil Liberties

The Red Team’s Spin on The Christmas Bomber

In recent weeks, conservatives have worked themselves into a self-righteous lather over how the Obama administration handled the would-be Christmas bomber.  It’s a complaint you could hear again and again at last weekend’s Conservative Political Action Conference: Mirandizing the 23-year-old Nigerian Muslim was a big mistake, the story goes, because it denied us valuable intelligence, and it’s just so typical of Barack Obama’s callow, weak, law-enforcement-oriented approach to the terrorist threat.

As a constitutional matter, I’ve never been entirely comfortable with the Miranda decision, which smacks of judicial lawmaking, and I don’t think liberty stands or falls on whether one failed terrorist got read his rights.  In fact, I think Mirandizing Abdulmutallab was a pretty silly thing to do.  The administration could and should have continued to question him and gather intelligence (and it’s not as if you’d need his statements to convict when there were scads of witnesses aboard the plane).

Nonetheless, I still find it hard to see all the hubbub as much more than manufactured partisan outrage.

After all, Richard Reid, the failed shoebomber of December 2001, was Mirandized repeatedly by George W. Bush’s FBI, who, rather than questioning him for 50 minutes, read Reid his rights as soon as the Massachusetts staties handed him over. That was barely two months after the largest terror attack in American history, at a time when we had good reason to fear that the terrorist threat was far greater than it now appears to be.  Somehow, though, I don’t recall hearing quite as much wailing and gnashing of teeth from the Right back then. Moreover, outside of the special pleading of former Bush officials, there’s little evidence that Bush would have handled the situation much differently even if it happened much later in his tenure as president.

We’re told that the Christmas Bomber’s treatment reveals Obama’s pusillanimous new paradigm for the War on Terror. But  virtually anyone who’s taken a serious look at Obama’s terrorism policies has concluded they differ from Bush’s mainly in terms of rhetoric, not substance. You can love the Bush approach or hate it, but if you’re drawing a sharp distinction between his policies and Obama’s, you’re misinformed at best.

Jack Goldsmith, the former head of the Bush administration’s Office of Legal Counsel, notes that the

premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.

For instance, Goldsmith notes, the Obama team “has embraced the Bush view that, as a legal matter, the United States is in a state of war with al Qaeda and its affiliates, and that the president’s commander-in-chief powers are triggered.” Moreover, Obama’s Justice Department “filed a legal brief arguing that the president can detain indefinitely, without charge or trial, members of al Qaeda, the Taliban, ‘associated forces,’” et al.

The abortive plan to try Khalid Sheik Mohammed near Ground Zero has to count as Obama’s dumbest political move since he tried to strongarm the Olympic Committee.  But it hardly constitutes a repudiation of the Bush approach to terrorism. When the Bush Team was confident of winning, they tried terrorists in civilian courts – including Zacarias Moussaoui, the would-be 20th hijacker (tried and convicted in Alexandria, so horrifyingly close to the Pentagon!). And since the Obama Team continues to use military tribunals, and reserves the right to imprison KSM indefinitely in the unlikely event he’s acquitted, it’s pretty hard to see their plan for selected civilian trials as a departure from Bush-Cheney – much less an attempt to curry favor with the ACLU.

James Carafano, the Heritage Foundation’s homeland security guru, isn’t the sort of guy who carries water for Barack Obama, but he recently told the New York Times

“I don’t think it’s even fair to call [Obama’s policies] Bush Lite. It’s Bush. It’s really, really hard to find a difference that’s meaningful and not atmospheric.”

Atmospherics seem to matter a great deal to GOP partisans these days, though. Asked what specific policies Obama could adopt to reassure supposedly terrified Americans, Peter King, the ranking Republican on the House Homeland Security Committee (formerly R-Derry), could do no better than: “I think one main thing would be to — just himself to use the word terrorism more often.”

The essence of King’s complaint seems to be that, policies aside, Obama isn’t stoking fear enough, isn’t talking tough enough, and seems reluctant to act the part of “the strong father who protects the home from invaders.” Forgive me if I’m unmoved.  Thus far the discussion serves to remind one of the fact that, though Republicans talk a good game about reducing the size of government, when the rubber meets the road, they repair to reliable political gambits that allow them to duck the hard choices: flag-burning amendments, the Pledge of Allegiance, Terry Schiavo, and the like.

If you’re sincerely concerned about the best way to handle terrorist suspects in the United States, then trying to score cheap political points isn’t the best way to start the conversation.

Obama: CEO of America, Inc.

Today Politico Arena asks:

Will President Obama’s proposal to block excessive rate increases by insurers help get a health care package through Congress?

My response:

Just where does President Obama think Congress finds the power to authorize the HHS secretary “to review, and to block, premium increases by private insurers, potentially superseding state insurance regulators”?  My colleague David Boaz addresses the politics of this unseemly proposal just below.  And elsewhere our colleague Michael Cannon offers a devastating economic critique of the proposal, citing White House economic advisor Larry Summers, no less, on the folly of it all.  But the constitutional question is what concerns me.

No doubt Obama, a former lecturer in constitutional law, believes that the power of Congress to regulate interstate commerce suffices to allow it to set private heath insurance premiums.  After all, once delegated to him, that same power allowed him, he believes, to take over auto companies, to fire corporate executives, to set their salaries, and to do, well, pretty much what he wanted in so many other areas.  That’s the modern executive state – the president as CEO of America, Inc.  The irony, however, is that the commerce power was given to Congress for precisely the opposite reason – to ensure economic liberty, not to restrict it. 

Facing state impediments to free interstate commerce, which had arisen under the Articles of Confederation, the Framers empowered Congress to check such restraints and to do the few other things needed to ensure a free national market.  In fact, early in our history a Hamiltonian proposal that Congress undertake a national industrial policy – ObamaCare is a stark example of such a policy – was rejected outright by the Congress as beyond its authority.  Obama’s proposal speaks directly to how thoroughly we’ve turned the Constitution on its head.  And as recent elections give evidence, the American people are coming increasingly to understand that.  This proposal, I predict, will go nowhere.

New Lawsuit against DC Government

Yesterday the Washington Post ran a nice profile about Tom Palmer and other DC residents who are challenging the constitutionality of regulations that make it a crime for people to bring their firearm outside of their residence for purposes of self-defense.  Most criminal attacks occur outside the home (around 87%) and the criminals are armed and always have the advantage of choosing when they’ll strike – and that’s usually when there are no cops around.

Related Cato scholarship here.  More here.

Government-Mandated Spying on Bank Customers Undermines both Privacy and Law Enforcement

I recently publicized an interesting map showing that so-called tax havens are not hotbeds of dirty money. A more fundamental question is whether anti-money laundering laws are an effective way of fighting crime – particularly since they substantially undermine privacy.

In this new six-minute video, I ask whether it’s time to radically rethink a system that costs billions of dollars each year, forces banks to snoop on their customers, and misallocates law enforcement resources.

Keeping Pandora’s Box Sealed

The moment everyone was waiting for has arrived: The article Josh Blackman and I wrote, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” has officially come out in the Georgetown Journal of Law & Public Policy.  (I previously blogged about this article here, among other places, and here’s a recent reference on Reason’s blog.)  The journal thought enough of our work to publish it on page 1 of issue 1 of this year’s volume.

We’re also grateful to the journal editors for expediting the editing and publication process generally so that the article would come out in time for the McDonald v. Chicago argument.  Indeed, that strategy is already paying off, with “Keeping Pandora’s Box Sealed” having been cited in the petitioners’ reply brief – not to mention Cato’s amicus brief.  The Georgetown JLPP has been cited in Supreme Court opinions the past two terms, so we’re cautiously optimistic about our chance to continue this trend.

In addition to reading the article (also available on SSRN), you can also attend various presentations I’m giving in the next two weeks about McDonald v. Chicago and properly extending the right to keep and bear arms to the states:

  • Feb. 23 at lunch - University of New Mexico Law School (sponsored by the Federalist Society) - “McDonald v. City of Chicago and Properly Extending the Right to Keep and Bear Arms”
  • Feb. 25 at 1:30pm EST/10:30 PST - ABA Continuing Legal Education Teleconference - “Beyond Gun Control: McDonald v. City of Chicago and Incorporation of Bill of Rights” (registration fee, 1.5 hours of CLE credit)
  • Mar. 1 at 4pm - Cato Institute Policy Forum - “McDonald v. Chicago: Will the Right to Keep and Bear Arms Apply to the States?
  • [Mar. 2 at 10am - Supreme Court argument in McDonald - I will be giving a statement to the media scrum on the marble steps afterward]
  • Mar. 2 at 3:30pm - Georgetown University Law School - Post-Argument Discussion of McDonald and “Keeping Pandora’s Box Sealed” (sponsored by the GJLPP and the Federalist Society)
  • Mar. 3 at 12pm - Cato Institute Hill Briefing in B-340 Rayburn House Office Building - “McDonald v. Chicago: The Fourteenth Amendment and the Future of Gun Rights

You can also listen here to a half-hour podcast about “Keeping Pandora’s Box Sealed” that I recently recorded with the Independence Institute’s David Kopel (also a Cato associate policy analyst).

Conservatism and Gay Rights

We had a spirited forum at Cato on Wednesday on the question “Is There a Place for Gay People in Conservatism and Conservative Politics?” Nick Herbert, who is likely to be part of the British Cabinet in another 100 days, gave a powerful and pathbreaking speech on the Tory Party’s new inclusiveness. In the video below you can find his remarks beginning at about the 3:00 mark, where he says, “I’m delighted to be here at Cato, the guardian of true liberalism.”

Andrew Sullivan (24:00) gave a moving and eloquent defense of a conservatism that has a place for gay people, declaring himself “to the right of Nick, a Thatcherite rather than a ‘One Nation’ Tory.” And Maggie Gallagher (39:15) did an admirable job of presenting her own views to an audience she knew was very skeptical.

Then the fireworks began (51:50). Andrew denounced my question – reflecting many complaints I’d received before the reform – about whether he can really be considered a conservative at this point. “Preposterous,” he declared. There followed sharp exchanges on hate crimes, marriage, adoption, religious liberty, and the state of conservatism today.

Watch it all here:

Or listen to a podcast of Nick Herbert’s speech. Subscribe to Cato’s podcasts on iTunes here.

Big Teacher Is Watching

Researching government invasions of privacy all day, I come across my fair share of incredibly creepy stories, but this one may just take the cake.  A lawsuit alleges that the Lower Merion School District in suburban Pennsylvania used laptops issued to each student to spy on the kids at home by remotely and surreptitiously activating the webcam built into the bezel of each one. The horrified parents of one student apparently learned about this capability when their son was called in to the assistant principal’s office and accused of “inappropriate behavior while at home.” The evidence? A still photograph taken by the laptop camera in the student’s home.

I’ll admit, at first I was somewhat skeptical—if only because this kind of spying is in such flagrant violation of so many statutes that I thought surely one of the dozens of people involved in setting it up would have piped up and said: “You know, we could all go to jail for this.” But then one of the commenters over at Boing Boing reminded me that I’d seen something like this before, in a clip from Frontline documentary about the use of technology in one Bronx school.  Scroll ahead to 4:37 and you’ll see a school administrator explain how he can monitor what the kids are up to on their laptops in class. When he sees students using the built-in Photo Booth software to check their hair instead of paying attention, he remotely triggers it to snap a picture, then laughs as the kids realize they’re under observation and scurry back to approved activities.

I’ll admit, when I first saw that documentary—it aired this past summer—that scene didn’t especially jump out at me. The kids were, after all, in class, where we expect them to be under the teacher’s watchful eye most of the time anyway. The now obvious question, of course, is: What prevents someone from activating precisely the same monitoring software when the kids take the laptops home, provided they’re still connected to the Internet?  Still more chilling: What use is being made of these capabilities by administrators who know better than to disclose their extracurricular surveillance to the students?  Are we confident that none of these schools employ anyone who might succumb to the temptation to check in on teenagers getting out of the shower in the morning? How would we ever know?

I dwell on this because it’s a powerful illustration of a more general point that can’t be made often enough about surveillance: Architecture is everything. The monitoring software on these laptops was installed with an arguably legitimate educational purpose, but once the architecture of surveillance is in place, abuse becomes practically inevitable.  Imagine that, instead of being allowed to install a bug in someone’s home after obtaining a warrant, the government placed bugs in all homes—promising to activate them only pursuant to a judicial order.  Even if we assume the promise were always kept and the system were unhackable—both wildly implausible suppositions—the amount of surveillance would surely spike, because the ease of resorting to it would be much greater even if the formal legal prerequisites remained the same. And, of course, the existence of the mics would have a psychological effect of making surveillance seem like a default.

You can see this effect in law enforcement demands for data retention laws, which would require Internet Service Providers to keep at least customer transactional logs for a period of years. In face-to-face interactions, of course, our default assumption is that no record at all exists of the great majority of our conversations. Law enforcement accepts this as a fact of nature. But with digital communication, the default is that just about every activity creates a record of some sort, and so police come to see it as outrageous that a potentially useful piece of evidence might be deleted.

Unfortunately, we tend to discuss surveillance in myopically narrow terms.  Should the government be able to listen in on the phone conversations of known terrorists? To pose the question is to answer it. What kind of technological architecture is required to reliably sweep up all the communications an intelligence agency might want—for perfectly legitimate reasons—and what kind of institutional incentives and inertia does that architecture create? A far more complicated question—and one likely to seem too abstract to bother about for legislators focused on the threat of the week.