Topic: Law and Civil Liberties

Supreme Court Lets Eminent Domain Abuse Continue

Yesterday, the Supreme Court decided not take up an important takings case, the infelicitously titled 480.00 Acres of Land v. United States. As I blogged previously, Cato filed an amicus brief in the case in the hopes that the owner of the “480.00 Acres of Land,” Gil Fornatora, would ultimately receive the “just compensation” to which he is constitutionally entitled.  The Court also missed the chance to correct the pattern of due process abuse that is apparently rampant in Florida.  The case involved the federal government maneuvering to unjustly drive down property values before taking land for (legitimate) public use – in this case expanding the Everglades – thus greatly diminishing the compensation it was obligated to pay the owners.  Fox News recently had a report about the case, in which I briefly appeared.

Interestingly – and sadly – since the Fox News report, my voicemail and email inbox has been receiving story after story of individuals who have experienced injustices similar to that of Mr. Fornatora. While it is unfortunate that this case has come to an end, the number of calls and emails leads me to believe that more cases like this will be making their way through the federal judiciary and that, eventually, this abuse will be halted.

To that end, while Cato does not involve itself directly in litigation, on the subject of takings and eminent domain abuse I can certainly recommend our friends at the Institute for Justice and Pacific Legal Foundation.  Specifically on the type of “condemnation blight” at the heart of the Fornatora case, feel free to contact PLF’s Atlantic (Florida) office at (772)781-7787 or write to Pacific Legal Foundation, 1002 SE Monterey Commons Blvd., Suite 102, Stuart, FL  34996.  Steven Gieseler was the attorney who presented the Fornatora case to the Supreme Court, and who got me involved.

In other eminent domain news, George Will had an excellent column on January 3 condemning the pernicious Atlantic Yards land grab that you can read about here.

Eat, Pray, Love, Marry—as Long as You’re Heterosexual

Elizabeth Gilbert, the bestselling author of the memoir Eat, Pray, Love, is back with a new book, Committed: A Skeptic Makes Peace With Marriage. In her earlier book Gilbert reflected on her broken marriage, her travels around the world “looking for joy and God and love and the meaning of life,” and her determination never to marry again. In the new book we learn that she surprised herself by meeting a man worth settling down with, a Brazilian living in Indonesia. So they became a couple and settled near Philadelphia, with Jose Nunes regularly leaving the country to renew his visitor’s visa.

But then came a legal shock:

She was in the early stages of research for that book when Nunes was detained, after a visa-renewing jaunt out of the country, by Homeland Security Department officials at the Dallas-Fort Worth International Airport. Popping in and out of the country as he’d been doing was not legal, Nunes was told, and if he wanted to stay permanently they would have to marry.

Gilbert didn’t want to marry. She and Nunes spent 10 months traveling in Asia. But then, reading about marriage, writing about her aversion to marriage, getting closer to her new partner, she decided to marry. And so they did. And they lived happily ever after in the New Jersey suburbs.

A happy ending all around. As long as you’re heterosexual. Because, of course, if you’re gay, the U.S. government will tell you that your life partner from Brazil may be allowed to visit the United States, but he won’t be allowed to stay. And guess what? He could stay if you were married, but you can’t get married. Catch-22. And even though you could now marry in some foreign countries and some American states and the District of Columbia, the Defense of Marriage Act still prevents the federal government – including its immigration enforcers – from recognizing valid marriages between same-sex partners.

Is this just a theoretical complaint? As a matter of fact, not at all. At least two well-known writers have recently faced exactly the same situation Gilbert did: a Brazilian life partner who couldn’t live in the United States. Glenn Greenwald, a blogger, author of bestselling books, and author of a Cato Institute study on drug reform in Portugal, has written about his own situation and that of others. Like Greenwald, Chris Crain, former editor of the Washington Blade, has also moved to Brazil to be with his partner.

Carolyn See, reviewing Gilbert’s book in the Washington Post, wrote, “The U.S. government, like a stern father, proposed a shotgun marriage of sorts: If you want to be with him in this country, this Brazilian we don’t know all that much about, you’ll have to marry him.” A shotgun marriage, sort of. But at least the government gave Gilbert a choice. It just told Greenwald and Crain no.

This unfairness could be solved, of course, if the government would have the good sense to listen to Cato chairman Bob Levy, who wrote last week in the New York Daily News on “the moral and constitutional case for gay marriage.” And it may be solved by the lawsuit seeking to overturn California’s Proposition 8 that is being spearheaded by liberal lawyer David Boies and conservative lawyer Ted Olson, writes Newsweek’s cover story this week, “The Conservative Case for Gay Marriage.” Until then: eat, pray, love, marry – as long as you’re heterosexual.

George Clooney’s Docile Body

up_in_the_air_georgeclooney2Running the airport maze to board my flight from Madrid back to the U.S. last week, I found myself thinking, with no small measure of envy, about Ryan Bingham, George Clooney’s character from Up in the Air. The ultimate frequent flier, Bingham slides shoes and belt off, flips laptop from case, and aligns them neatly on the x-ray conveyor in a seamless, fluid display of security Tai Chi. He navigates from curb to gate and back with crisp efficiency, every motion practiced and automatic.

My envy was tempered somewhat as I reread Discipline and Punish on the trip back. Bingham’s military precision, it struck me, was the product of a form of training implicit in the security process. As a corrective brace “teaches” the proper posture just by making it the only comfortable one, the screening procedures embed a set of tacit instructions, consisting of the optimal set of motions required to pass through smoothly.  And of course, it teaches more than bodily motions: Bigham knows you don’t stand behind the Arabs in the screening line!

That’s not to say airport security is some kind of insidious brainwashing program, but there’s a dimension of privacy here that it seems to me we don’t talk about nearly enough. Our paradigms of privacy harms are invasion (the jackboot at the door, in the extreme case) and exposure (the intimate detail revealed). We generally think of these as exceptions — as what happens when surveillance goes wrong, either because it gets the wrong target or, when the surveillance is universal by design, because information that’s supposed to remain protected falls into the wrong hands or is otherwise misused.   Invasion and exposure may be serious problems, but they are fundamentally mistakes — hiccups in the system we can seek to fix.

Discipline, by contrast, is what inevitably happens when the system functions as intended, at least to the extent people are conscious of being (actual or potential) targets of surveillance. It is probably not as serious a harm as invasion or exposure most of the time, but it’s also by far the most pervasive and ineradicable effect of surveillance. It would be nice if our debates about surveillance included not just the question “What will be exposed?” but also “How — and for what — are we training ourselves?”

Blasphemy Laws Are an Admission of Failure

The Washington Post feature “On Faith” today discusses Ireland’s new, profoundly misguided blasphemy law. Blasphemers there can now be fined up to $35,000. That’s a lot of money for a few little words.

Atheist Ireland is testing – and protesting – the law by publishing blasphemous quotations like the following:

“Thou hast said: nevertheless I say unto you, Hereafter shall ye see the Son of man sitting on the right hand of power, and coming in the clouds of heaven.”

“Ye are of your father the devil, and the lusts of your father ye will do. He was a murderer from the beginning, and abode not in the truth, because there is no truth in him.”

“May Allah curse the Jews and Christians for they built the places of worship at the graves of their prophets.”

“Show me just what Muhammad brought that was new and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached.”

They are, respectively, from Jesus, Jesus, Muhammad, and Benedict XVI.

Maybe it’s an American thing, but the Post apparently couldn’t find any panelists to defend the law. These folks are all professional wordsmiths, of course, and these tend to be most supportive of the freedoms that they depend on the most. As I noted in my recent Policy Analysis, those who are most easily offended, and who value free speech the least, tend to gravitate not to newspapers, but to governments (and university administrations). That’s where the power is.

Susan Jacoby, for whom I have the utmost respect, even calls the law Pythonesque, likening it to the Ministry of Silly Walks. Of course, there’s this as well:

Blasphemy laws are oddities, because they concede an awful lot of emotional power to the blasphemer. They tell the world: My feelings are so very fragile. Or perhaps they say: My god is so very weak – so weak that he needs state protection against other gods, or even against mere potty-mouthed humans. Either way, it’s an embarrassing admission, but hardly the business of government. If your god can’t take the heat, he’s hardly a god at all.

Jesus and Mo put it very well indeed:


Michigan Court Inexplicably Tosses Suit, Endorses Forcible Enlistment of Day-Care Workers into the State Government

When lawyers and other commentators say that a court did not properly explain its decision, it’s typically for hyperbolic effect. But, in a bizarre move, a court in the failed great state of Michigan has dismissed an economic liberty case brought by our friends at the Mackinac Center Legal Foundation for reasons the court quite literally did not explain.  The court simply denied the plaintiffs’ complaint and that was that.

Home-based day care owners Sherry Loar, Michelle Berry, and Paulette Silverson have all been taxed by the Michigan Department of Human Services because, according to the state, they are somehow employees of the state and (further!) must pay union dues.  because this baseless assertion comes directly from the state DHS, an executive department, among the significant constitutional objections to the case presents separation of power problems.  (Ok, I haven’t studied the Michigan Constitution, but I assume they separate their powers there.)  Enough ridiculous laws are passed by state legislatures – more than 40,000 last year alone – we don’t need state executive agencies getting into the act.

Yet, the Michigan Court of Appeals has nothing at all to say about the case.

Inexplicable – and unpardonable.

Bodyscanning Captain Underpants

I probably should’ve predicted that a huge story implicating national security surveillance policy would break just as I was boarding a flight to Madrid for the holidays. Jim Harper & c. have by now covered most of the bases admirably, but there are one or two points I feel it can’t hurt to emphasize.

First, there’s been a lot of talk about millimeter wave body imaging scanners in the wake of the attempted Christmas bombing; the New York Times headlined a story about the machines “Technology that Might Have Helped.” Really, that should read “Might Have Helped Had It Been Installed in Lagos,” which might have underscored the weirdness of some of the ensuing discussion. Because the awesome next-gen spytech you’ve got at the most advanced 20% or 50% or 90% of airports matters a lot less than the situation in the bottom 1%, where a global adversary is going to focus their efforts. At a couple hundred thou each, we’re talking about a pretty pricey solution if they’ve got to be near-ubiquitous to work.

The press have set up a familiar security/privacy debate over body imaging, but this strikes me largely as a sideshow. If no records of the scans are kept, and software is used to obscure body contour details while preserving resolution for objects concealed on the person, and the scans are reviewed by analysts in another room who don’t simultaneously see the subject, then it’s hard to see how they’re substantially more intrusive than x-rays of carry-on baggage. (Though I would, of course, want to insist on those three privacy measures.) The real questions to raise about the tech are entirely on the security side.

First, experts have raised serious doubt about the assertion that millimeter wave scanners would have detected the device involved in the Christmas attempt.  It’s hard to imagine a dumber way to blow a few hundred million bucks than on high-tech measures that wouldn’t even work against current terrorist methods, especially when alternative measures like chemical swabs—far cheaper, though without the gee-golly Total Recall factor—are on the menu. But you also have to assume that if it were effective against current methods, terrorists would switch methods—either by selecting different targets or looking for other means of hitting the same targets. Now, forcing that kind of shift can clearly be a benefit: As Jim has noted, the kind of device they had to use to circumvent metal detectors and baggage x-rays was clearly less reliable than a bomb in a suitcase could’ve been, making it possible for passengers to foil the attempt.  The question is whether the countermeasures they take in response to the body scanners require them to incur marginal liabilities that justify the cost.  It seems awfully doubtful, frankly.

If you’ll forgive a bit of frank cynicism, I predict we’ll end up debating body imagers because they’re big, flashy, sexy tech with lots of cool scifi visuals for the weekly newsmags and cable news shows to use.  The anchors get to say “naked” a lot, and air travelers get to feel like they’re being protected by cyborgs from the future.  Meanwhile, measures that actually enhance security, like reinforced cockpit doors, tend to be rather more boring and invisible to the average person. So, for instance, probably Umar Farouk Abdulmutallab should have at least been pulled aside for additional screening.  It’s not that it should have been enough, in isolation, that his father had contacted the American embassy with concerns about his son (intel agencies are drowning in vague tips, which is one reason there are half a million people on the terror watchlist, only a handful of whom are actually a threat; you can’t feasibly ground all of them) or that he bought a one-way ticket with cash or that he was traveling without baggage, or that there was chatter about a potential bombing attempt by a Nigerian. Rather, you’d think the combination of those things would have triggered a closer look at the airport. But that’s a question of abstruse and partly classified back-end data sharing procedures, which aren’t nearly as fun to talk about on Meet the Press.

Protecting Property Rights

The Left tends to dismiss property rights as being for the rich and powerful.  But the rich and powerful usually can take care of themselves whether their rights are formally recognized or not.  It is the poor and middle class who most need legally enforceable property rights.

No where is that more clear than in cases of eminent domain.  The government rarely moves against the rich and powerful, seizing their lands to redistribute to the poor.  Most often the government takes the property of the poor and middle class to redistribute to the rich and influential.

So it is in New York City.  George Will describes one case now working its way through the courts:

On Aug. 27, 1776, British forces routed George Washington’s novice army in the Battle of Brooklyn, which was fought in fields and woods where today the battle of Prospect Heights is being fought. Americans’ liberty is again under assault, but this time by overbearing American governments.

The fight involves an especially egregious example of today’s eminent domain racket. The issue is a form of government theft that the Supreme Court encouraged with its worst decision of the past decade – one that probably will be radically revised in this one.

The Atlantic Yards site, where 10 subway lines and one railway line converge, is the center of the bustling Prospect Heights neighborhood of mostly small businesses and middle-class residences. Its energy and gentrification are reasons why 22 acres of this area – the World Trade Center site is only 16 acres – are coveted by Bruce Ratner, a politically connected developer collaborating with the avaricious city and state governments.

To seize the acres for Ratner’s use, government must claim that the area – which is desirable because it is vibrant – is “blighted.” The cognitive dissonance would embarrass Ratner and his collaborating politicians, had their cupidity not extinguished their sense of the absurd.

If the courts took the Constitution seriously the outcome of this case would not be in doubt.  But today the Constitution only occasionally affects the operations of modern American government.  Let’s hope that principle trumps politics when the case reaches New York’s top court.