Topic: Law and Civil Liberties

The Best Way to Get a Kidney (or Heart, Lung, Liver…)

An op-ed in today’s NYT describes the abysmal organ tranplant situation in the United States, where the demand for healthy organs vastly outstrips the supply. A snippet :

There are 85,000 people biding their time [awaiting kidney transplant]… More than 4,500 of them died last year waiting. On average, that’s 13 people dying each day awaiting a kidney. (Maybe you should hope for liver disease: there are only about 16,000 people on the liver waiting list, and one-third of them get their liver in any one year.)

The column’s author is Daniel Asa Rose, whose new book Larry’s Kidney describes his cousin’s travel to China to receive a transplant (skirting Chinese law).

Rose argues the United States can resolve the transplant organ shortage by adopting three policies:

[B]etter finance stem-cell research so we can start simply growing kidneys; build better mechanical organs; and change the presumed consent option so that people would have to opt out of donating organs rather than opt in.

The first two proposals, unfortunately, are more wishful thinking than serious policy, at least in the near term. Decades of attempts at robotic organs have yielded very disappointing results, and the many advances that we’re promised from stem cell research seem to be many years in the offing. If the United States is to save the lives of most of the people now on organ transplant lists, or who will join the lists in the next decade, it will be because of a dramatic increase in organ transplantation.

One way to accomplish this increase is to adopt Rose’s third policy — hospitals would harvest organs from the recently deceased unless the deceased has explicitly refused to make his organs available for donation. As the op-ed notes, several countries around the world already have this policy.

But this policy should trouble people who care about civil liberties. Should a person have to explicitly state on a legal document that he wants his body to be kept intact after his death? And even if the person has done so, what if the hospital (perhaps conveniently) cannot find the deceased’s documents?

Fortunately, there is an intermediate policy that would be much more respectful to the deceased and to civil liberties, would be easy to implement, would dramatically increase the supply of organs, and would have little cost relative to the other costs of transplantation: Incentivize people to volunteer to be organ donors — perhaps by granting a tax credit to their estate or covering their funeral expenses if, upon their passing, a healthy organ is harvested for transplantation. 

Unfortunately, this policy is prohibited by the 1984 National Organ Transplant Act, a law that has cost more U.S. lives than were lost in the Korean and Vietnam wars combined. And this policy is opposed by many bioethicists despite clear empirical evidence that the policy would significantly reduce pain and suffering — which says more about the sorry condition of contemporary applied ethics than about the idea of rewarding organ donors.

Cato has done considerable work advocating this idea. For some examples besides the articles linked in the above paragraph, see this video and these papers.

Courts Check D.C. Government — Again.

Last year, the Supreme Court declared the D.C.’s gun control law unconstitutional (pdf).  Now a federal appellate court has unanimously declared that D.C. police’s aggressive ”Neighborhood Safety Zone” (NSZ) checkpoint policy is unconstitutional (pdf). 

Under the policy, any vehicle entering an area that has been declared a “Neighborhood Safety Zone” by the city’s police chief can be “stopped for the purpose of determining whether the driver has a legitimate reason for entering the NSZ.”

Here’s an excerpt from the appelate court decision:

We further conclude that appellants have sufficiently demonstrated irreparable injury, particularly in light of their strong likelihood of success on the merits. … The harm to the rights of appellants is apparent. It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access. As our discussion of the likelihood of success has demonstrated, there is no such constitutionally sound bar in the NSZ checkpoint program. It is apparent that appellants’ constitutional rights are violated. It has long been established that the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Granted, the District is not currently imposing an NSZ checkpoint, but it has done so more than once, and the police chief has expressed her intent to continue to use the program until a judge stops her.

It’s time for Mayor Adrian Fenty to show Peter Nickles, the Attorney General of the city, to the door.  Too many of his ideas have proven to be misguided and contrary to law.

The Sotomayor Hearings

judgesotomayorNothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she – an average federal judge with a passel of unimpressive decisions – would not even be part of the conversation if she weren’t a Hispanic woman.

As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.

At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views – and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.

TSA Search Overturned

A federal judge just threw out three fake passports discovered by a Transportation Security Agency (TSA) screener, holding that the search exceeded the TSA’s aviation security mission. (H/T Bruce Schneier)

This is long overdue; the TSA has moved beyond its original mandate and is now conducting searches for “contraband.” The search for anything that seems suspicious can quickly turn into an inquisition at the security checkpoint. Campaign for Liberty staffer Steven Bierfeldt experienced this at the St. Louis airport, and is now suing to prevent future searches beyond what is necessary for aviation security.

The invasive searches don’t add much to airline security anyway. Just as GAO investigators consistently defeat security at federal buildings, TSA screeners often fail to find fake explosives on security test teams.

As Bruce Schneier points out in his excellent book, Beyond Fear: Thinking Sensibly About Security in an Uncertain World, the two effective changes in airline security since September 11, 2001 have been (1) hardening of cockpit doors; and (2) airline passengers will resist because they know that their hijackers are playing for keeps.

Schneier spoke at Cato’s two-day conference on counterterrorism in January. Video at the link.

Senator Webb: Time to reinvent criminal justice system

Interesting article in today’s Washington Post on Senator Webb’s efforts to revamp the American criminal justice system.  Here’s an excerpt:

“I am, at bottom, a writer,” he says, invoking his default response. “I start with a theme, rather than a plot.” Webb wants to shape a plotline that, with each turn of the page, draws America closer to reinventing its criminal justice system. Questioning why the United States locks up so many of its youths, why its prisons swell with disease and atrocities while fundamental social problems persist in its streets, has earned Webb lavish praise as a politician unafraid to be smeared as soft on crime. And when a law-and-order type as rock-ribbed as Webb expresses willingness to consider legalizing or decriminalizing drugs, excitement follows.

Read the whole thing.  Tomorrow Cato will be hosting a Hill Briefing about federal drug policy.  For additional Cato work, go here and here.

Rhode Island Studies Marijuana Decriminalization

Criminalization of marijuana use never did make sense.  Surely the results of the Drug War–billions of dollars wasted, tens of millions of regular users, millions of people arrested–have made it even more obvious that prohibition is a failure.  And now,with the U.S. suffering through a nasty recession, it is even more foolish to waste resources in a vain attempt to stop recreational drug use.

Before heading home for the July 4th weekend the Rhode Island Senate set up a committee to study the idea of decriminalization.  Reports the Providence Journal:

Weeks after legalizing the sale of marijuana to sick people, lawmakers have voted to explore how much Rhode Island might collect in revenue if it were to make all sales of marijuana legal and impose a “sin tax” of $35 per ounce.

During the General Assembly’s aborted rush to adjournment Friday, the Senate approved a resolution — introduced earlier the same day — to create a nine-member special commission to study a swath of issues surrounding marijuana. Among them: “The experience of individuals and families sentenced for violating marijuana laws … The experience of states and European countries, such as California, Massachusetts and the Netherlands, which have decriminalized the sale and use of marijuana.”

Drug prohibition has failed.  Rhode Island legislators have an opportunity to help the nation change direction in the way it deals with drug abuse.

A Terrorist We Should Have Prosecuted

Andy McCarthy makes a good point over at The Corner about Laith al-Khazali, a member of a Shiite militant group responsible for the deaths of American troops in Iraq. Al-Khazali has been released, allegedly as part of negotiations with terrorists holding British hostages. Senators Sessions and Kyl have questioned this action in a letter to President Obama.

McCarthy lays out the facts on al-Khazali here. Al-Khazali participated in a sophisticated attack on American troops in Karbala. The militants wore American uniforms and took American soldiers hostage. After leaving the site of the attack, the militants executed their prisoners.

Though I have disagreed with McCarthy on other issues, he makes a valid point here.

Al-Khazali is guilty of honest-to-goodness war crimes.

Wearing an enemy’s uniform for infiltration is permissible. Wearing an enemy’s uniform while shooting at them is perfidy, a prosecutable war crime.

Otto Skorzeny, head Nazi commando, was acquitted of perfidy after World War II. Skorzeny’s men had infiltrated American lines during the Battle of the Bulge while wearing American uniforms. They avoided firing at American troops while in our uniforms, though in two instances fired at American troops in self-defense. British commando Forest Frederick Edward Yeo-Thomas testified for the defense, saying that he had infiltrated German lines in a German uniform. W. Hays Parks provides an excellent discussion of special operations soldiers’ use of non-standard uniform and the legal boundaries of this issue here. Al-Khazali crossed the line by wearing an American uniform while firing at our soldiers.

Killing enemy soldiers after they are in your custody is also a prosecutable war crime. We prosecuted German soldiers for doing this in the Malmedy Massacre, and have prosecuted our own soldiers for killing prisoners. We have even prosecuted contractors for killing prisoners on the battlefield and during interrogation.

Al-Khazali deserves to be brought to justice. It is a shame we did not provide it.