Topic: Law and Civil Liberties

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.

Civil Liberties and President Barack W. Bush?

It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list.  Indeed, they probably weren’t even on the list.  Candidate Barack Obama promised “change” when he took office, and change we have gotten.  The name of the president is different.

Alas, the policies are much the same.  While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.

Reports the New York Times:

Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.

It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?

The answer depends on what it means to act like Mr. Bush.

As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.

“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”

But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.

“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”

The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us.  The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.