Topic: Law and Civil Liberties

A Civil Liberties Roundup

Here are some interesting new items on the web:

  • Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute.  Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.”  And “Obama is possibly the most dangerous and destructive president we have ever had.”  Go here for the full interview.
  • Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
  •  Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
  • Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department.  Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”

Good stuff here.  For more Cato scholarship, go here.

Colbert Report on PATRIOT & Private Spying

Stephen Colbert tackles both Obama’s flip-flop on the PATRIOT Act (“When presidents take office they learn a secret… Unlimited power is awesome!”) and the private sector’s complicity in the growth of the surveillance state—drawing heavily on the invaluable work of Chris Soghoian.

The Colbert Report Mon - Thurs 11:30pm / 10:30c
The Word - Spyvate Sector
www.colbertnation.com
Colbert Report Full Episodes Political Humor U.S. Speedskating

Supreme Court Erases Legal Precedent for Auto Bailout

On Monday the Supreme Court released its last orders for the calendar year. Of particular note – apart from the non-release of the long-awaited decision in the Citizens United campaign finance case – the Court dismissed the cert petition in Indiana State Police Pension Trust v. Chrysler LLC as moot and vacated the underlying Second Circuit opinion. While this is not the ideal outcome – particularly for the Indiana creditors – it is in its own way an important decision preserving the integrity of bankruptcy law.

To recap: In January, Chrysler stood on the brink of insolvency. Purporting to act under the Emergency Economic Stabilization Act, the Treasury Department extended the car company a $4 billion loan using funds from the Troubled Asset Relief Program (TARP). Still in a bad financial situation, Chrysler initially proposed an out-of-court reorganization plan that would fully repay all of Chrysler’s secured debt.

The Treasury rejected this proposal and instead insisted on a plan that would completely eradicate Chrysler’s secured debt, hinging billions of dollars in additional TARP funding on Chrysler’s acquiescence. When Chrysler’s first lien lenders refused to waive their secured rights without full payment, the Treasury devised a scheme by which Chrysler, instead of reorganizing under a chapter 11 plan, would sell its assets free of all secured interests to a shell company, the New Chrysler.

Chrysler was thus able to avoid the “absolute priority rule,” which provides that a court should not approve a bankruptcy plan unless it is “fair and equitable” to all classes of creditors. The forced reorganization amounted to the Treasury redistributing value from senior, secured creditors to debtors and junior, unsecured creditors. The government should not have been allowed, through its own self-dealing, to hand-pick certain creditors for favorable treatment at the expense of others who would otherwise enjoy first lien priority.

While the Court’s ruling prevents the creditors from collecting what would have otherwise been considered their rightful portion of the liquidation, it also erases a terrible precedent from the federal judiciary’s books and reaffirms years of settled bankruptcy law. A decision upholding the Second Circuit’s ruling would have undercut the established practices of bankruptcy and introduced even more uncertainty into a still-uneasy market.

To put it more broadly, the bankruptcy laws are in place to ensure that debts are paid in an established and fair manner and not at the whim of whatever political actors happen to be in power at the time. Taking away that assurance stifles investment and thereby hurts the economy.

Cato joined the Washington Legal Foundation, the Allied Educational Foundation, and George Mason law professor Todd Zywicki on a brief supporting the creditors’ petition that you can read here.  And you can watch Cato’s policy forum on the auto bailout here.

Cell Phone Searches? There’s an App for That.

Police hoping to rummage through a suspect’s cell phone after an arrest must apply for a warrant, the Ohio Supreme Court has ruled. That apparently makes it the first court to address a question I first wrote about two years ago, after Adam Gershowitz broached it in a law review article.

Normally, when police arrest someone—and recall that even trivial offenses may provide formal grounds for arrest—they’re entitled to conduct an incidental search of the person and their immediate vicinity, nominally for the purpose of uncovering any weapons and preventing the destruction of contraband.  The new wrinkle as Gershowitz noted, is that we’ve begun routinely carrying vast stores of personal data around with us in our pockets: photos, correspondence, music and movies,  Internet browsing histories, even whole libraries of books.  What’s more, these little archives are typically connected, sometimes automatically, to still more personal information held remotely: mailboxes, calendars, bank accounts, purchasing histories, or in principle just about anything accessible online.

Suddenly a narrow, reasonable-sounding exception to the ordinary Fourth Amendment warrant requirement starts looking like a pretty huge loophole.  The quantity of personal “papers and effects” that can be stored in an ordinary phone would have filled a house just a few decades ago. But if those smartphones are subject to “search incident to arrest,” there’s no longer any need to bother with judicial authorization for the search of a private home. And since a legal system governed by precedent subjects digital technologies to the tyranny of bad metaphors, there’s a disarmingly strong argument to be made that smartphones should be treated like any other physical “closed container”—a digital backpack or purse, at least with respect to the data stored locally on the phone.

This case involved more conventionally phone-like information: calling records. But the Court nevertheless saw the danger inherent in treating portable data storage devices as mere “containers,” holding that searches of phones were reasonable only to the extent they could be linked to the twin justifications of safety and preventing destruction of evidence.  But as the ruling and dissent both note, there are a handful of precedents that appear to cut in the other direction. The question now is whether other courts will follow Ohio’s lead or remain mired in inapposite comparisons to knapsacks and cigarette packs.

Bill of Rights Day

Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.

Let’s consider each amendment in turn.

The First Amendment says that Congress “shall make no law … abridging the freedom of speech.” Government officials, however, insist that they can make it a crime to mention the name of a political candidate in an ad in the weeks preceding an election. They also insist upon gag orders in thousands of federal investigations.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is doing so well that we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can storm into homes in the middle of the night after giving residents a few seconds to answer their “knock” on the door.

The Fifth Amendment says that private property shall not be taken “for a public use without just compensation.” Government officials, however, insist that they can take away our property and give it to others who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial. That is why 95% of the criminal cases never go to trial. The handful of cases that do go to trial are the ones you see on television — the late Michael Jackson and Scott Peterson, etc.

The Seventh Amendment says that jury trials are guaranteed even in petty civil cases where the controversy exceeds “twenty dollars.” Government officials, however, insist that they can impose draconian fines against people without jury trials. (See “Seventh Amendment Right to Jury Trial in Nonarticle III Proceedings: A Study in Dysfunctional Constitutional Theory,” 4 William and Mary Bill of Rights Journal 407 (1995)).

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are to be reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers are reserved to the states, or to the people.

It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control. The Framers themselves would often refer to written constitutions as mere “parchment barriers” or what we would describe as “paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all.

Another important point to remember is that while we ought to be alarmed by the various ways in which the government is attempting to go under, over, and around our Bill of Rights, the battle will never be “won.” The price of liberty is eternal vigilance. To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than three million copies of our “Pocket Constitution.” At this time of year, it’ll make a good stocking stuffer. Each year we send a bunch of complimentary copies to the White House, Congress, and the Supreme Court so you won’t have to.

Finally, to keep perspective, we should also take note of the many positive developments we’ve experienced in America over the years. And for some positive overall trends, go here.

It’s PATRIOTic to Panic!

According to Politics Daily columnist Patricia Murphy vital provisions of the PATRIOT Act are in danger of expiring! Which means that scary terrorists could already be hiding under your bed ZOMG!!!1!!1!

Let’s take a slow deep breath or two, shall we? As I’ve been discussing here for some time, there are three national security surveillance provisions due to sunset at the end of this year. It has also been clear for weeks now that, with health care taking center stage, Congress was unlikely to come to an agreement on the details of reform and reauthorization before recess. And while Politics Daily may have just “learned Thursday” that congressional advocates for civil liberties reforms would be comfortable with a temporary renewal of the expiring provisions to allow more extended debate, anyone who’s been paying the slightest bit of attention has heard them say as much all along. Which, given the tenor of press coverage, is a good thing: The easiest thing to do would be a straight reauthorization that avoided much-needed changes and took an issue that tends to make Democrats skittish off the table.  But the chance that legislators will simply allow the expiring provisions to lapse is, to a first approximation, zero. The brevet renewal will probably be dropped into the Defense Appropriations Bill before Congress this week.

Since the article dwells at some length on the Fort Hood shootings and the risk of homegrown terrorism, it’s worth reiterating: The never-invoked “Lone Wolf” provision, which is among those expiring, does not apply to actual “homegrown terrorists”—that is, permanent residents or citizens like Nidal Hassan.  Those people can still be surveilled using ordinary Title III criminal wiretap warrants. Nor, despite what the article claims, would law enforcement “lose the ability” to conduct roving wiretaps or demand business records even if Congress somehow failed to pass a reauthorization. Roving taps would remain available under the criminal statute, though under a slightly heightened standard—which, again, is what you’d have to use anyway to go after a genuine homegrown terrorist who wasn’t a member of a foreign group like al-Qaeda. Ordinary FISA wiretaps, requiring investigators to specify the phone lines and Internet accounts covered, would still be available. (These represent the overwhelming majority of the thousands of FISA warrants issued each year.) The “business records” provisions of the Foreign Intelligence Surveillance Act similarly predates PATRIOT, and would remain in existence for use against actual “agents of a foreign power,” though again, the standard for issuance would be raised. A plethora of other mechanisms for obtaining third party records—grand jury subpoenas, National Security Letters (issued without that pesky judicial oversight), court orders—would remain in place.

So, in sum: If by some unfathomable happenstance these few provisions were allowed to lapse for a few months while Congress hashed out the details of a renewal and reform bill, there’s no reason to think it would be an especially serious problem given the array of new tools we’ve made available to terror investigators over the past eight years. But even if you’re the nervous sort, the point is moot, because there is no realistic chance that the PATRIOT provisions in question will be allowed to lapse. There never has been: A temp extension has quite clearly been on the table all along. Though I suppose that’s not the kind of headline that drives clicks.

Keeping Pandora’s Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“  As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece,  which I will briefly recap:

First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal – and thereby a reinvigoration of Privileges or Immunities – would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause – the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I are working on an op-ed – not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.