Topic: Law and Civil Liberties

Taking Terrorism Seriously

Today Politico Arena asks:

What’s in a name? Does it matter whether or not it’s called “war on terror? Is Obama’s approach any better or worse than Bush’s?

My response:

It matters whether or not it’s called “war on terror,” because war, whether declared or not, changes the legal regime – from law enforcement, aimed primarily at investigating and prosecuting domestic crimes after the fact, to protecting a people from acts of war before they happen by means unavailable outside of war.  In discharging his duty to protect the nation, President Obama has moved slowly, inconsistently, and often begrudgingly from the law-enforcement to the war paradigm.  Al-Qaeda has shown no such confusion or irresolution.  Just this morning, for example, the Washington Post reports that at its web site yesterday, al-Qaeda in the Arabian Peninsula ”called for ‘every Muslim’ to kill ‘every cross-worshiper who works at the [British and American] embassies.’”

So how did Obama treat the Christmas Day bomber al-Qaeda sent us?  The way his mentor, Franklin Roosevelt, treated the German saboteurs who landed on our shores?  No – Abdulmutallab was “lawyered up,” read his Miranda rights, and encouraged to talk through his lawyer, like any common criminal.  Some say that approach – like calling him “the underwear bomber” – reduces a terrorist’s stature.  That’s fine for the playground (as if the terrorists were seeking simply to join the community of nations).  This is the real world.

And in the real world you don’t make excuses for why the dots weren’t connected, as Obama’s homeland security adviser, John O. Brennan, did yesterday on the talk shows.  You find out why they weren’t.  And a good place to start this morning is with Gordon Crovitz’s piece in the Wall Street Journal.   Rarely, he writes, does intelligence come to us “on such a silver platter.”  Abdulmutallab’s father, a respected banker, reported his concerns to the American Embassy not once but three times, twice in person. And the son had a U.S. visa, which could easily have been discovered.  He paid for his ticket in cash, and had no luggage.  But the criteria U.S. intelligence agencies use for determining when to put a suspected terrorist on a watch list or a no-fly list, Crovitz shows, are adapted from a landmark law-enforcement case, Terry v. Ohio, concerning local traffic stops:  “Mere guesses or inarticulate ‘hunches,’” the standard concludes, ”are not enough to constitute reasonable suspicion.”  Is it any wonder that the dots were not connected.  They won’t be until we start taking this war seriously.

Executed for Sorcery? In 2009?

A court in Saudi Arabia has sentenced a Lebanese television host to death for the crime of “sorcery.” Apparently Ali Hussein Sibat was recognized by Saudi religious police as he made a pilgrimage to Mecca. On his show, he gave advice to callers and made predictions about their future. He could be executed any day now. In an article in the Daily Star of Lebanon, the leading English-language newspaper in the Middle East, Cato senior fellow Tom G. Palmer and University of Chicago dean Raja Kamal call on King Abdullah to face down the religious police and release Ali Hussein Sabat to Lebanon:

This case illustrates the tremendous power of the religious police in Saudi Arabia. King Abdullah faces an uphill battle in his struggle against extremists; not only the Al-Qaeda terrorists who kill innocent people, but the religious police and judiciary, who kill innocents as well….

The king and his supporters need to act decisively to eliminate the power of the extremists to carry out improper arrests, level false charges, coerce testimony, and conduct unjust trials, especially those culminating in murder. Sibat and others in his situation are being made into human sacrifices by the extremists in order to maintain their own power….

Lebanon also has a responsibility to speak up for and to protect its own citizens. The government of Prime Minister Saad Hariri has a special relationship with the ruling family of Saudi Arabia. That’s why the government needs to show that, as the representative of a democratic Arab country with a strong broadcasting industry, it will support freedom of expression – particularly that of Ali Hussein Sibat and others who broadcast from Lebanon.

Attending to Business

Today, Politico Arena asks:

Flight 253: Do you agree with Janet Napolitano that “the system worked.”

My response:

But for a faulty detonator, NPR reports this morning, and the quick action of a Dutch passenger, nearly 300 people would have met a flaming death near Detroit on Christmas day.  And homeland security secretary Janet Napolitano assures us that “the system worked”?

More than eight years after 9/11, and we still don’t have measures in place to keep people with explosives from boarding planes.  Instead, we’re now told that we must sit in our seats during the final hour of a flight with not even a paperback book in our laps.  Had Ms. Napolitano said that “the system worked as expected,” she would have been right, ironically.  To be sure, there have been successes in the war on terror: The Wall Street Journal notes editorially this morning that there were 12 terror incidents, including thwarted plots, on U.S. soil this year.  But this latest incident, in the area (airline security) that affects most Americans, and the administration’s response to it, do not give confidence.

The one main reason we have government at all is to better protect us from domestic and foreign threats than we ourselves, acting alone, could do.  But as planes were flying to the twin towers, the Pentagon, and the Capitol, Mr. Bush was reading to elementary school children.  Perhaps Mr. Obama should turn his attention from taking responsibility for the nation’s health care – the market and private charity can handle that, if he’d just get out of the way – to taking his main responsibility more seriously.

The Politicization of the Law

Are law and politics separate realms? That’s the ideal. But Adam Liptak, Supreme Court reporter for The New York Times, raises questions today about whether it’s any longer the case. Drawing on a study published last month in The Vanderbilt Law Review and summarized in the autumn issue of The Green Bag, which collected data from 1882 through 2006, he notes that, beginning around 1990, Supreme Court clerks “started to take jobs that reflect the ideologies of the justices for whom they worked.” That’s “cause for concern,” says one of the study’s authors, NYU law professor William E. Nelson, “because it’s a further piece of evidence of the polarization of the court.”

In particular:

Clerks from conservative chambers are now less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones….

The Clinton administration hired 96 former clerks, but only 16 percent of them came from the chambers of the four most conservative justices…. Of the 89 former clerks hired by the administration of George W. Bush, on the other hand, 68 percent came from those four chambers.

More striking still is what the study shows about the legal academy. From about 1940 to 1990, “about a third of all clerks became law professors,” with little correlation to the justices ideological leanings. (N.B.: “conservative” justices were few and far between until late in that stretch.) But more recently “only 19 percent of clerks from the four most conservative justices … joined the legal academy and only 7 percent went to one of the top 10 law schools” as ranked by U.S. News & World Report. And “a significant minority joined the faculties of religious or conservative law schools.” (“Conservative law schools,” I should note, may be close to an oxymoron.) By contrast, “clerks for the other five justices followed the historical pattern, with 34 percent joining the legal academy, about half of them at the elite schools.”

All of which, the study says, reinforces the idea that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.” And that, Liptak concludes, “is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.”

It’s good to have all of this drawn together, but it’s hardly surprising to anyone who’s been watching the law schools, the courts, and the law over the years. Liptak points to an important source of this change: “The rise of the organized conservative legal movement, including notably the Federalist Society,” which resulted in turn from “the sense among conservatives that law school faculties are overwhelmingly liberal.”

It’s no accident, therefore, that the change became noticeable around 1990. The Federalist Society came into being only in 1982. Over the next several years it would slowly influence the legal debate – in the law schools, and later among lawyer practice groups – and influence future clerks along the way. And it was only during the Reagan administration that Republicans began to approach nominations to the Court more seriously and systematically, from an ideological perspective.

But those efforts were not the root cause of today’s politicization of the courts and the law. They came about because the law schools, the courts, and the law were already long politicized – albeit in only one direction, which gave a deceptive picture. When all three institutions were marching only one way, toward the modern administrative state, it seemed that there was little dissension, and hence little politicization. But in truth, the politicization of the law – politics replacing law – had begun much earlier, with the Progressives; it was institutionalized by the New Deal Court; and it continued until the late 1960s and into the 1970s, when conservative and libertarian legal scholars began to call for separating politics and law. See here for a more detailed treatment of those developments, and here for the roots of our politicized law in the Progressive Era.

Do Bring a Phonecam to a Snowball Fight

By now, you’ve probably heard the story—and seen the video.  During the weekend’s Snowpocalypse™ in DC, a gaggle of young urbanites, using Twitter and other social media, announced a big group snowball fight at the corner of 14th and U Streets.  For a while, it was all good fun, with the participants periodically stopping the skirmish to help dislodge a motorist for a snowdrift, amid collective cheers. But an off-duty plainclothes cop whose Hummer had been hit by a few snowballs lost his cool—and advanced on the crowd to berate them with his gun drawn. You’d think an angry, out-of-uniform guy brandishing a gun might set off a dangerous stampede in the snow, but true to form, the DC crowd responded with chanting: “You don’t bring a gun to a snowball fight!”

Initially, the Metropolitan Police Department “reviewed the evidence” and concluded that the officer had only been holding a cell phone after all—folks who’d said it was a gun must have just imagined it, what with all that snow. But it turns out there were a whole lot of video cameras and phonecams there, and still shots and recordings began to circulate on the Internet, making it impossible to deny what had happened.  By Monday, the chief of police had issued a statement calling the officer’s behavior “totally inappropriate” and announcing that he’d be relegated to desk duty pending further inquiry.

As anyone who follows the excellent work of my colleague Radley Balko will be well aware, things often play out quite differently—with departments circling the wagons, and no serious accountability for far more egregious abuses of authority. But video—increasingly ubiquitous and portable—can make a difference. And it strikes me that, in one sense, it helps remedy other kinds of social inequality.  Reviewing that video of the snowball scene, you might point out that the crowd is full of white 20-somethings, many of whom (given the city’s demographics) are almost certainly college-educated professionals, while police misconduct toward less privileged groups is far more likely to be ignored.

What is privilege, though? In cases like these, it consists largely in the ability to be seen and heard—to attract media attention, to articulate your story in a clear and compelling way, to be considered credible by press and the community. All of these, unfortunately, depend enormously on class, status, race, and education. Unless there’s video. And video is democratic these days. You’d have to poke around a bit to find even a bottom-of-the-line cheapo cell phone that didn’t come with at least a still camera, and likely video capture to boot. So while there’s been some attention paid to the potential of this kind of “Little Brother” surveillance to increase accountability—the to lessen disparity in power between citizen and cop—it’s also worth stressing the way it can lessen certain kinds of disparities between citizens.

That said, and just going by memory, it seems like most of the stories I encounter in this vein still involve white, middle-class, college-educated young people. One possibility is that this shows I’m wrong, and that other aspects of privilege still play into their videos circulating while others languish. Another, though, is just that they’re both accustomed to this kind of routine use of technology and sharing of data, and that they take their social power for granted. That is, it occurs more naturally to them that the right response to this kind of misbehavior is to record and circulate it. If it’s mostly the latter, we’re on an interesting precipice, where the main remaining precondition for the leveling effect to kick in is just awareness that the other preconditions are in place.  If that’s right, the next few years should be interesting.

Surveillance State More Popular than iPhone

pewtechpollA new Pew poll reveals that most of us think this decade’s been a bit of a bust—little enough surprise there. But when pollsters dug into people’s attitudes toward particular technological and social changes, I was a little taken aback by the incredible popularity of “increasing surveillance and security measures.” They’re not quite as popular as, say, the Internet—but folks love Big Brother better than iPhones, online retail, blogs, or reality TV.  That may seem especially odd because even someone who regards those changes as necessary and appropriate cannot be glad that we now find them necessary—and you might expect the association to pull the numbers down.

I won’t get too depressed about this just yet, because I generally think it’s an error to take polls either too seriously—if you ask people for an opinion they don’t have, they’ll formulate one on the spot, but it’ll be about a millimeter thick—or too literally. If you read “How are you? / Fine thanks.” as a sincere inquiry into and report on someone’s welfare, you’re missing something rather elementary about our social world. Ditto, I think, if you assume that the large numbers of people who purport to be unsure whether Barack Obama is perhaps a secret foreigner literally believe in an insane conspiracy theory. It has a propositional form, but it’s more about signaling an attitude than a factual belief. When “confidence” in government spiked right after 9/11, should we suppose people had really revised their assessment of the government’s competence upward?  Of course not, it was more like a vote of confidence. It’s like whispering “there’s no such thing as ghosts!” to yourself—something you do precisely when you don’t feel so certain anymore. (I’ve elsewhere referred to these as “symbolic beliefs.”)

So what are people doing when they say increased surveillance and security measures are a “change for the better.” Some people, of course, are really expressing a considered political opinion about the PATRIOT Act or other reforms. The phrase “security measures” may suggest to others just those measures which make us more secure—in the same way “Terrorist Surveillance Program” implies a program that surveils only terrorists, even if the rationale for the program is precisely the lack of sufficient evidence that its targets are terrorists.  But I expect there’s also an element of “there’s no such thing as ghosts” at work. Given that our intelligence efforts fell spectacularly short at the decade’s start, we have to hope there’s been a net change for the better. And the downsides to expanded surveillance are largely invisible, slow, and structural: You have to go out of your way to think about them or they’re not especially evident. The rest of the survey items, though, prime people to think about “better” in terms of concrete differences in our daily experience. They may think of the inconveniences of lines at the airport, but there’s nothing in the rest of the context that seems likely to activate longer-term political concerns. The same question in a survey about other explicitly political trends might trigger a different response.

This is, incidentally, one reason I think privacy advocates make an understandable error when we put too much emphasis on the personal effects of expanded surveillance: “Do you want the government reading your e-mail?” For a lot of people, this will just spotlight how little direct harm they seem to individually experience as a result of surveillance. It’s less dramatic an appeal, but you really do need to ask people to focus on what the explosion of surveillance means for the structure of a free society, not just gauge immediate consumer satisfaction.

Properly Extending the Right to Keep and Bear Arms to the States

I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while “incorporating” the right to bear arms against the states.  (Josh Blackman fisked the article in more depth here.)   This piece was essentially a distillation of the ACRU’s amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato’s brief, that Chicago’s gun ban is unconstitutional.

It has come to my attention, however, that I mischaracterized one aspect of the Kens’ op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents).  This is the ACRU’s main argument, and it is based largely on Ken Klukowski’s recent law review article – indeed, the brief’s body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature.  (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won’t do that here.) 

In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:

  1. “Extreme Anti-Gun” – Affirm the lower court in its entirety, deciding that it correctly interpreted Supreme Court precedent, that reconsideration of this precedent is unwarranted, and therefore that neither the Second Amendment nor the right to bear arms it protects extends to people in the states (as opposed to in federal territories, like the District of Columbia).  I can’t imagine that any justice will vote for this way; even those who dissented in Heller generally support the selective incorporation of rights against the states.
  2. “Conventional Liberal” – Affirm the lower court in part but clarify that while the Second Amendment is indeed “incorporated” as against the states via the Due Process Clause, Chicago’s gun ban is still okay – possibly under a test weighing the individual right against the city’s interest in reducing gun violence. There may be one to four votes for this position: Justice Breyer likes balancing tests; Justice Stevens may feel that his hometown’s regulations are justified; and Justices Ginsburg and Sotomayor may feel the same way about New York.
  3. “Conventional Conservative” – Reverse the lower court, “incorporate” the Second Amendment via the Due Process Clause – adopting an analysis akin to that of Ninth Circuit Judge Diarmuid O’Scannlain in the Nordyke case – and strike down Chicago’s gun ban.  The NRA’s brief primarily advocates this position, as do many conservatives fearful of the Privileges or Immunities Clause.  There may be one to eight votes for this position: The “minimalist” Chief Justice Roberts may be hesitant to overturn longstanding precedent; Justice Scalia may decide that the devil he knows (substantive due process) is better than the one he doesn’t (privileges or immunities); Justice Kennedy may feel vested in his own expansive “fundamental rights” jurisprudence under the Due Process Clause (see my review of a book analyzing that jurisprudence); Justice Alito may share one or more of the above sentiments; and one or more of the aforementioned liberals may decide to “bite the bullet” and go along with this position.
  4. “Mend Slaughter-House, Don’t End It” – Reverse the lower court, overturn three old precedents – Cruikshank (1876), Presser (1886), and Miller (1894), which were decided at a time when none of the rights in the Bill of Rights was considered to apply to the states – “incorporate” the Second Amendment via the Privileges or Immunities Clause without touching Slaughter-House, and strike down Chicago’s gun ban.  This is the ACRU position, and while I don’t think it’s textually or historically supportable – a scholarly consensus across ideological lines holds that Slaughter-House was both wrongly decided and forecloses any significant application of the Privileges or Immunities Clause – it could emerge as a political “compromise.”  (If Justice O’Connor were still on the Court, I could maybe see her advancing this position.) 
  5. “Originalist/Libertarian” – Reverse the lower court, overturn Slaughter-House and the three aforementioned cases, extend the right to keep and bear arms to the states (which is technically distinct from “incorporating” the Second Amendment), and strike down Chicago’s gun ban.  This is Cato’s position – as well as that of the liberal Constitutional Accountability Center on behalf of eight leading constitutional law professors from across the political spectrum – and there will be one and may be up to all nine of the justices here: Justice Thomas has long said that he’d like to revisit Slaughter-House in the appropriate case, and he surely led the push to grant a cert petition whose question presented called for briefing about the Privileges or Immunities Clause; any of the others who seriously grapple with the arguments in Alan Gura’s brilliant petitioners’ brief (and those of his amici, us included) will also have to go this way despite their various political qualms.

In short, I see at least five votes in favor of extending the right to keep and bear arms to the states, but it’s an open question as to whether the Court will do that via the Due Process of Privileges or Immunities Clause of the Fourteenth Amendment.   

Now, you may ask why, if I’m so confident that the fifth option above is correct, don’t all conservatives qua self-professed “originalists” gravitate towards it (and, conversely, why some liberals qua “living constitutionalists” do).  That’s an unlawyerly matter of policy preferences: as the Kens’ op-ed details, conservatives (and some libertarians), while wanting to extend Heller’s interpretation of the Second Amendment to the states, are wary of opening a Pandora’s Box of positive rights (health care, housing, welfare, etc.), as well as the perpetual culture-war bogeymen (abortion, gay marriage, pornography, etc.).  Liberal intellectuals, meanwhile, are holding their nose at having to extend gun rights because they feel that’s the only concession they have to make to achieve their utopic constitutionalization of the entire progressive agenda.

While libertarians share the conservative concern about positive rights – as well as legal, if typically not policy, qualms about courts’ handling of social issues (e.g., that Roe v. Wade is bad law even if some libertarians are pro-choice; that Lawrence v. Texas is good law but achieved through Kennedy-esque hand-waving rather than sound legal reasoning) – many of us see the benefits of being able to protect economic liberties and other natural rights.  For example, unlike conservatives, we generally like Lochner, the 1905 case that struck down on “liberty of contract” grounds a New York law limiting bakers’ hours.

Yes there’s a danger – particularly if President Obama gets to replace not only Justices Stevens and Ginsburg, but also Scalia and Kennedy – that overturning Slaughter-House will open the aforementioned Pandora’s Box, but: 1) that danger isn’t necessarily mitigated by somehow managing to use the Privileges or Immunities Clause without overturning Slaughter-House; 2) the danger is no different than under the current substantive due process doctrine; and 3) if we are to remain originalists not just in overturning Slaughter-House but in future jurisprudence, the progressives’ arguments fail, the danger is averted, and the Box stays sealed. Josh Blackman and I wrote our article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms,” in part to address the valid concerns (sketched in the Kens’ op-ed) about the consequences of truly reviving the Privileges or Immunities Clause.

While we won’t assuage the staunchest social conservatives – (adult) pornography is protected speech (but even more so is political advertising!) – we should mollify many faint-hearted originalists.  Anyone who thinks the Constitution is a “dead” document, whose text is to be interpreted according to its original public meaning, has to admit that the Privileges or Immunities Clause protects something more than what Slaughter-House said it did.

To see how all this works in greater detail, read our Pandora’s Box article, which I’ve previously discussed here , here, and here.  And again, Cato’s amicus brief is here; see also this law review article by its principal author, Cato adjunct scholar Timothy Sandefur.