Topic: Law and Civil Liberties

Stingray: A New Frontier in Police Surveillance

I’ve written previously on this blog regarding stingray devices: powerful surveillance tools which allow law enforcement agents to spy on the cell phones of unsuspecting Americans, often without judicial or legislative oversight.

For a deeper dive into the subject, I’ve put together a policy analysis detailing the past history, present issues, and future prospects of stingray devices and police surveillance more generally.

From the executive summary:

Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens, track the physical locations of those phones, and perhaps even intercept the content of their communications.

The device is known as a stingray, and it is being used in at least 23 states and the District of Columbia. Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.

The Masked Agitator Veto

The leaders of the University of California at Berkeley lacked power to prevent Milo Yiannopoulos from speaking on their campus yesterday. A subset of the university’s faculty urged their Chancellor to do just that. His spokesman replied, “Our Constitution does not permit the university to engage in prior restraint of a speaker out of fear that he might engage in even hateful verbal attacks.

Most protesters opposed the event peacefully. Some did not: “security officials claim about 150 ‘masked agitators’ joined the demonstration, setting fires, throwing molotov cocktails and rocks and attacking some members of the crowd.” Yiannopoulos’ speech was cancelled in the interest of public safety.

The faculty members seeking to censor Yiannopoulos did not cover themselves with glory, but the people resorting to violence were the true villains in this narrative. They achieved through violence what could not be achieved by law.

Of course, it is possible the university did not try very hard to hold the event. But the Chancellor faced down a part of his own faculty, and the Berkeley College Republicans thanked the university police and the administration “for doing all they could to ensure the safety of everyone involved.” It does not appear the administration came up short. To the contrary, they appear to have fulfilled their obligations. They deserve praise.

This morning President Trump tweeted “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?”

Notice U.C. Berkeley is the subject of both actions. But the Berkeley Chancellor supported the speech, and we have no evidence that he or any other person acting on behalf of Berkeley incited violence yesterday.

I do not see how attacking people who have observed constitutional norms will encourage others to also respect free speech.

Walter Olson has more on the federal funds aspect of all this.

On Friday, February 3, at noon, Cato will host a discussion of President Trump and free speech. You can register here or walk in tomorrow.   

Trump, UC Berkeley, and the Federal Funding Whip

A President may not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. (That’s this morning’s Presidential tweet story, if you slept in.) But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against feeble resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, by Chronicle of Higher Education correspondent Steve Kolowich, who also spoke to me for the story. He quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”

Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:

It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.

University administrators have submitted meekly for years now to rule by federal “Dear Colleague” letter. Now it will be Trump appointees writing those letters. If the administrators wish to retain some measure of independence from control by Washington, D.C., they may need to grasp that the hour is growing late – and that it wasn’t such a good idea to grow dependent on the federal dollar in the first place. (adapted from Overlawyered). 

Neil Gorsuch Will Make a Fine Justice

My first choice from the president’s fabulous list of terrific judges – they’re all winners, believe me (no really, solid list) – was probably the judiciary’s twitter laureate, Texas Supreme Court Justice Don Willett, but Judge Neil Gorsuch of the Tenth Circuit was right up there. As you can see by my statement to CNN, I’m pleased as punch with the selection. 

There’ll be time enough to analyze Judge Gorsuch’s work, but after reading a stack of his opinions over the weekend, the most salient parts of his judicial record are as follows:

  1. A keen appreciation for constitutional structure as a guarantor of our rights and liberties.
  2. A real devotion to originalism – probably more than the self-described “faint-hearted originalist” Antonin Scalia – and textualism.
  3. Strong support for the freedom of speech and religion, and the First Amendment more broadly.
  4. Skepticism of the administrative state.
  5. Like Scalia, he construes criminal statutes narrowly, so people aren’t convicted and punished without the government’s meeting its evidentiary burden or establishing that it didn’t violate constitutional rights in arresting and prosecuting defendants.
  6. Really, really good writing, which even Justice Elena Kagan has praised.

Gorsuch also maintains a good relationship with Cato and has published a Policy Analysis with us. In short, Donald Trump has managed to pick a nominee who should please everyone other than progressives: social conservatives, libertarians, legal elites, and I imagine the populists who trust him to pick “the best judges.” Left-wing activists are already talking about how Gorsuch is extreme and is anti-women, workers, yada yada – they have to raise money somehow – but I find it hard to see how Senate Democrats will muster 40 votes to sustain a filibuster against someone who was unanimously confirmed in 2006, particularly with a tough 2018 map.

For more analysis, see my short piece in the New York Post, plus Andrew Grossman and David Rivkin in the Wall Street Journal, as well as these excellent essays by Ramesh Ponnuru and Ed Whelan.

An Executive Order On LGBT Issues? Religious Exemptions? Both?

Following a day of feverish rumors to the contrary, the White House has flatly denied that it plans to reverse an Obama administration directive extending nondiscrimination protections to lesbian, gay, bisexual and transgender federal workers. “ ‘President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election,’ the White House said in a statement. “The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.”

The White House did not rule out revisiting other decisions by its predecessor administration on gay rights, such as an order requiring federal contractors to adopt nondiscrimination policies, which pointedly did not provide conscience exemptions for private religious agencies. A year and a half ago in this space I myself took issue with what the Obama administration was up to on this front.

The effect of a contractor ban without religious objector provisions, I argued, would be to kick various religious agencies out of social service work in public settings in adoptions and foster care, as well as some prison, drug rehab, and various other settings. Ousting conservative religious groups from participation in social service adoption is likely to cut down on the number of successful placements made of children in public care, which would hurt the taxpayer, hurt adoptive parents, and, not least, hurt kids. The more genuinely pluralist approach, I argued, would be to acknowledge conscience exemptions while fully opening these systems to participation by contractors that gladly serve gays, persons of no given sect, religious unbelievers, and so forth. 

Further reaction is probably best postponed until things get past the rumor stage.

Sizing Up Trump’s Excellent Short List

People have been asking me about the final few people President Trump seems to be considering for Supreme Court nomination. I know them and especially their work to varying degrees and am confident that they’re each worthy of elevation. Here’s a summary of their judicial profile.

Neil Gorsuch is probably the most like Scalia. He has a well thought out conception of constitutional interpretation and the way that structure protects liberty. He’s most known for his opinions supporting religious liberty and pushing back on the administrative state. In a Trumpian world, his biggest weakness is that he went to Harvard Law. He was confirmed unanimously to the Tenth Circuit and should not face significant opposition.

Thomas Hardiman is a judge’s judge. He decides the issues before him generally in a way that should be pleasing to conservative legal elites and does not go beyond the four corners of the case. He brings no ideological agenda to his tasks and so may be less like Scalia in that respect—and also he’s probably more deferential to law enforcement that Scalia was. He also was confirmed unanimously and should face no significant opposition except that some activists will glom on to his strong defense of the right to keep and bear arms.

William Pryor is a courageous and forthright judge. He would generate the most controversy because of his extra-judicial writings and speeches, most notably in stern opposition to Roe v. Wade. He has been attacked from both the left and the right (unjustly in my view) and his previous confirmation was itself not without controversy. He is best known for his writings on religious liberty and the proper judicial role.

It would be impolitic of me to name my preference, but let’s just say that the American people would be served well by any of them (or the others who’ve been mentioned).

Trump Looking to Local Police for Immigration Enforcement

Last Friday, President Trump issued a misguided executive order affecting migration from seven majority-Muslim countries. In December 2015 Trump called for a “total and complete shutdown of Muslims entering the United States,” until (as his fans never tire of pointing out) elected officials “can figure out what is going on.” News from last week confirms that Trump’s rhetoric related to Muslims was not just campaign bombast; it was a serious policy proposal. Another immigration proposal touted during the campaign was also codified into policy by executive order last week, with Trump directing the Department of Homeland Security (DHS) to expand an interior immigration enforcement program that will grow the federal government’s role in state and local law policing while harming police departments’ relationships with the communities they are tasked to serve. 

Under §287(g) of the Immigration and Nationality Act, local and state police departments can enter into agreements with Immigration and Customs Enforcement (ICE) to enforce federal immigration laws. Thirty-four law enforcement agencies in 16 states are now taking part in the 287(g) program. Up until 2013 this program included “task force” agreements, which allowed participating officers to arrest suspected immigration law violators in the field, and “jail enforcement” agreements. Under “jail enforcement” agreements officers at state and local correctional facilities can seek to identify aliens via interviews and checking their biographic details against DHS databases.

Currently, only jail enforcement agreements are in place. The Obama administration abandoned the “task force” agreements at the end of 2012 amid worries about their negative effect on police-community relationships and accusations of racial profiling.

Trump said that he would “expand and revitalize” 287(g) during a speech last August. An executive order signed last week makes it clear that the Trump administration is serious about such a revitalization and expansion, including a reinstatement of “task force” agreements.