Topic: Law and Civil Liberties

Week in Review: The War on Drugs, SCOTUS Prospects and Credit Card Regulation

White House Official Says Government Will Stop Using Term ‘War on Drugs’

The Wall Street Journal reports that White House Drug Czar Gil Kerlikowske is calling for a new strategy on federal drug policy and is putting a stop to the term “War on Drugs.”

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting ‘a war on drugs,’ a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use…. The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration, Mr. Kerlikowske said.

Will Kerlikowske’s words actually translate to an actual shift in policy? Cato scholar Ted Galen Carpenter calls it a step in the right direction, but remains skeptical about a true change in direction. “A change in terminology won’t mean much if the authorities still routinely throw people in jail for violating drug laws,” he says.

Cato scholar Tim Lynch channels Nike and says when it comes to ending the drug war, “Let’s just do it.” In a Cato Daily Podcast, Lynch explained why the war on drugs should end:

Cato scholars have long argued that our current drug policies have failed, and that Congress should deal with drug prohibition the way it dealt with alcohol prohibition. With the door seemingly open for change, Cato research shows the best way to proceed.

In a recent Cato study, Glenn Greenwald examined Portugal’s successful implementation of a drug decriminalization program, in which drug users are offered treatment instead of jail time. Drug use has actually dropped since the program began in 2001.

In the 2009 Cato Handbook for Policymakers, David Boaz and Tim Lynch outline a clear plan for ending the drug war once and for all in the United States.

Help Wanted: Supreme Court Justice

Justice David Souter announced his retirement from the Supreme Court at the end of last month, sparking national speculation about his replacement.Souter Dedication

Calling Souter’s retirement “the end of an error,” Cato senior fellow Ilya Shapiro makes some early predictions as to whom President Obama will choose to fill the seat in October. Naturally, there will be a pushback regardless of who he picks. Shapiro and Cato scholar Roger Pilon weigh in on how the opposition should react to his appointment.

Shapiro: “Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.”

Obama Pushing for Credit Card Regulation

President Obama has called for tighter regulation of credit card companies, a move that “would prohibit so-called double-cycle billing and retroactive rate hikes and would prevent companies from giving credit cards to anyone under 18,” according to CBSNews.com.

But Cato analyst Mark Calabria argues that this is no time to be reducing access to credit:

We are in the midst of a recession, which will not turn around until consumer spending turns around — so why reduce the availability of consumer credit now?

Congress should keep in mind that credit cards have been a significant source of consumer liquidity during this downturn. While few of us want to have to cover our basic living expenses on our credit card, that option is certainly better than going without those basic needs. The wide availability of credit cards has helped to significantly maintain some level of consumer purchasing, even while confidence and other indicators have nosedived.

In a Cato Daily Podcast, Calabria explains how credit card companies have been a major source of liquidity for a population that is strapped for cash to pay for everyday goods.

Obama’s Military Commissions

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.

Telling and Fighting

There is a popular argument that, what with two wars underway, this is no time to rock the military by abolishing the “Don’t ask, don’t tell” policy and letting homosexuals serve openly. That’s basically what the secretary of defense says.

This post by Stephen Walt reminded me that the opposite is true: that wars are an opportunity to change dumb personnel policies. The end of war in Iraq will deprive advocates of equality in military service of one of their best arguments: restrictions on who the military can employ undermine the effort to win. And the best advocates for the change are current and former service members making that point.

Rachel Maddow had a good segment the other day on the topic. Her guests were a gay, Arabic-speaking lieutenant who is being booted out of the Army National Guard for coming out, and former rear admiral and now Pennslyvania congressman Joe Sestak, who is co-sponsoring legislation to change the law.

I predict that allowing gays to serve openly will be like allowing women on navy ships or even gay marriage. Lots of people fight it. Then it happens, it’s no big deal, and everyone forgets what they were so upset about.

New at Cato: Nat Hentoff on Hate Crimes

With the support of President Obama, so-called “hate crime” legislation is on the move in Congress. According to Cato senior fellow Nat Hentoff, laws that punish one time for the crime and another time for the hate violate the First Amendment, the 14th Amendment and protections against Double Jeopardy.

In April, Hentoff spoke at the Cato Policy Perspectives seminar in New York City about the current expansion of hate crime legislation.

Former President Fox: “Legalize Drugs”

Mexico’s former President, Vicente Fox, joins the growing chorus of Latin American ex-presidents calling for an end on the war on drugs. He’s proposing an open debate on drug legalization.

It’s a shame, though, that these leaders wait until they are out of office to voice their opposition to Washington’s prohibitionist drug strategy. While it’s true, as Fox points out, that any step towards legalization in the region must be supported by the United States, Latin American presidents skeptical of the status quo could use the pulpits at the United Nations, Organization of American States, or the Summits of the Americas to denounce the war on drugs and call for different approaches.

Still, Fox’s opinion on the matter is welcome.

End the Drug War. Just Do It.

Obama’s new drug czar, Gil Kerlikowske, in an interview with the Wall Street Journal, says it is time to move away from the “war” rhetoric surrounding federal drug policy.  Since Kerlikowske has just assumed office, this is exactly the right thing to do – set a whole new tone from the militarized approach we have seen over the past 20-30 years. 

Drug abuse is a problem that must be dealt with, but we don’t need to send troops to Latin America, we don’t need former generals like Barry McCaffrey to oversee drug policy, and we don’t need police officers conducting raids on American homes with machine guns and  flash bang grenades.

The political climate on drug policy is shifting.  Republican governors like Arnold Schwarzenegger are calling for an open debate on legalizing marijuana.  New York is finally discarding its Rockefeller drug laws.  And Latin American leaders are urging the U.S. to reverse course.  Obama seems interested in a new direction but the appointment of a sensible law enforcement official like Kerlikowske and talk of “more treatment” is not enough.  We need more decisive action away from the criminalized approach to drug policy.  The time is right to just do it.

For Cato research on this subject, go here.

White House Czar Calls for End to ‘War on Drugs’

This morning in The Wall Street Journal:

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting “a war on drugs,” a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

…Gil Kerlikowske, the new White House drug czar, signaled Wednesday his openness to rethinking the government’s approach to fighting drug use.

Mr. Kerlikowske’s comments are a signal that the Obama administration is set to follow a more moderate – and likely more controversial – stance on the nation’s drug problems.

The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration, Mr. Kerlikowske said.

Well, that’s at least a modest step in the right direction. However, I want to see how policies change (if they do) under the Obama administration. A change in terminology won’t mean much if the authorities still routinely throw people in jail for violating drug laws.

As for the international war on drugs, everyone in the Washington area is welcome to join us this Friday on Capitol Hill to discuss the consequences of the war on drugs abroad.