Endorsing Barack Obama, Al Gore proclaims:

After eight years in which our constitution has been dishonored and disrespected, we need change.

He has a point. But he should have said sixteen years.

Comprehensive multilateral agreements are not the only way to improve the trading system. There are plenty of measures countries can undertake on their own accord and in pursuit of their own interests to promote further trade, investment, and growth. In “While Doha Sleeps: Securing Economic Growth through Trade Facilitation,” Cato scholar Daniel Ikenson explains how improvements in trade facilitation procedures can help reduce the cost of trade and increase its flow.

• “While Doha Sleeps: Securing Economic Growth through Trade Facilitation,” by Daniel Ikenson
• Troubles With Trade Facilitation, featuring Daniel J. Ikenson, 05/02/2008 (MP3)

Today George Will slams John McCain for his “extravagant condemnation” of last weeks ruling concerning habeas corpus and Guantanamo.

Here’s an excerpt:

The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are entitled to seek habeas corpus hearings, John McCain called it “one of the worst decisions in the history of this country.” Well.…

The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo’s approximately 270 detainees, many certainly are dangerous “enemy combatants.” Some probably are not. None will be released by the court’s decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests.

McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.”

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?

As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, “is a separation of powers principle” involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.

In Marbury v. Madison (1803), which launched and validated judicial supervision of America’s democratic government, Chief Justice John Marshall asked: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

Read the whole thing. The Cato legal brief quoted can be found here.

Steve Chapman’s latest column is also about the Supreme Court ruling. Here’s an excerpt:

The administration asserted that in time of war, even an unconventional war against a shadowy foe, the executive branch has the power to capture a foreigner abroad and hold him for the rest of his life, without any independent review by the courts.

Short of claiming the right to do that to an American citizen arrested on U.S. soil—a claim the administration had also made, only to see it repudiated by the courts—that’s about as vast and dangerous a power as you could find. So it is not surprising that the Supreme Court balked.

The justices insisted that the constitutional guarantee of habeas corpus, which lets prisoners challenge their confinement, must be respected. Except when Congress formally suspends that right, wrote Justice Anthony Kennedy, it assures that “the judiciary will have a time-tested device … to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”

Good stuff. The full article is here.

Update: Steve Chapman has a follow up article here.

Sometimes the Supreme Court makes news for the cases it doesn’t take, not just the opinions it produces in cases it hears. Today marked one such occasion, when the Court denied cert in Dupuy v. McEwen, in which Cato filed an amicus brief.

For more than a decade, the Illinois Department of Child and Family Services has investigated parents based on anonymous tips of abuse or neglect, and deemed them “indicated” after a cursory investigation by state officials who have no effective check on their unilateral authority. Unlike actual child abuse cases, in which the State removes children from abusive situations with judicial approval, the State takes a different route with “indicated” parents – threatening them with what it calls a “Safety Plan.” In so doing, the State demands that parents abandon their homes and families pending an investigation of unlimited duration. Frequently State officials will threaten to remove children immediately into foster care if the parents do not “consent” to the plans without counsel and without negotiation. According to the Seventh Circuit, parents are not allowed to challenge the plans in a judicial or administrative forum if they “consent” to the State’s demands, even if they do so only after being threatened with the loss of their children. Our brief, which supported the class of parents petitioning the Supreme Court for review of these practices, argued that these “Safety Plans” violate the Due Process Clause because they infringe on fundamental family rights without affording any opportunity to challenge state action. They also vest unfettered discretion in state officials to infringe on parents’ fundamental rights. Finally, they represent an unconstitutional condition that forces parents to make an agonizing choice between abandoning their children in the hope that the State’s vague concerns would be mollified by subsequent investigation, or taking the risk that the State would make good on its threat to remove their children into foster care without a hearing.

We had some hope on this case — as did SCOTUSblog — because the Court had asked Illinois to respond to the cert petition (immediately after receiving our amicus brief I should add!), and also because SCOTUSblog had picked it as “one to watch,” but it was not to be. It’s not a tremendously surprising outcome given the tangled procedural history underlying the case — making it a less than ideal vehicle for presenting these issues — but still a disappointing result for parents, children, and freedom from state coercion.

The tech blogoshpere is up in arms about efforts by the Associated Press to curb quoting of its articles online.

Last week, we published a TechKnowledge called “The Future of News: A Golden Age for Free Speech?”. In it, Steve Boriss discussed some history of the AP, Thomas Jefferson’s vision of the free press, and the challenges that the modern era presents to the news publishing business.

I was in Lithuania for a conference last week, but some of my attention was focused on the Emerald Isle. The Irish referendum on the EU Constitution/​Lisbon Treaty took place on Thursday, and the Friday papers — which I perused online before boarding my flight back to Washington — indicated that the referendum was thought to have received a majority. Indeed, one Irish newspaper even had a story that bookies already were paying people who bet it would be approved. So you can imagine my happiness when I landed and saw about 10 emails from people saying the referendum was defeated. This represents a huge victory for sovereignty and decentralization over the statist bureaucrats and political elites in Brussels. As Investor’s Business Daily noted:

The European Union’s politicians and institutionalized bureaucracy were stunned and affronted at the audacity of the Irish people, who…unexpectedly bucked their own political establishment by voting against the EU reform treaty. …An impressive multimedia campaign opposing the pact was orchestrated by technology entrepreneur Declan Ganley. It emphasized the dictatorial powers the deal would give the Brussels bureaucracy, the threat to the low business taxation in Ireland that attracts investment, the supremacy of Euro law over Irish law, and a provision that lets changes be made without member-country approval. …the Irish rejection of the Lisbon Treaty should be seen as more than just a sign of the troubles ahead for the peoples of Europe as they become victims of a self-inflicted dictatorship of the bureaucrats. The very notion of a United Europe was always fundamentally misguided. …Many centuries ago, Irish monks saved Europe from itself by preserving the moral and intellectual foundations of civilization. Unfortunately, the continental powers are unlikely to let the Irish save Europe from itself a second time.

You may be wondering about the last sentence in the excerpt. If the Irish voters rejected the Constitution/​Treaty, how can the bureaucrats prevail? The answer is simple and indicative of how the political elite have little use for democracy. As this EU Observer report indicates, the Eurocrats — for all intents and purposes — intend to ignore the Irish vote and press forward on the referendum:

The European Commission has called for ratification of the Lisbon treaty to continue, despite the No result in Ireland’s referendum. “This vote should not be seen as a vote against the EU… [It] has not solved the problems which the Lisbon Treaty is designed to solve,” commission president Jose Manuel Barroso said in Brussels on Friday. …Mr Barroso said he believed “the treaty is alive” and “we should go on and try to find a solution.” It is “important now that the EU does not fall again in depression and does not forget there are other issues to deal with,” he added. In a joint statement later on, France and Germany also called for the ratification of the Lisbon treaty to continue. “The ratification procedure has already been achieved in 18 countries. Therefore we hope that the other member states will continue the process,” the Franco-German declaration reads. 

This arrogance is typical of European elitists. Libertas, the group that led the campaign to defend Irish sovereignty, has an excellent webpage detailing some of more absurd statements made by the continent’s out-of-touch politicians. Perhaps even more distressing, though, is the fact that some Irish politicians are siding with the Brussels bureaucracy and conspiring on ways to impose the Constitution/​Treaty, even though the Irish people rejected the referendum. The EU Observer explains:

Irish Prime Minister Brian Cowen has said that his country’s referendum on the Lisbon Treaty result must be respected, but was unclear on whether to rule out a second referendum on the document. …In a resounding defeat for the treaty, only ten out of 43 Irish constituencies voted in favour of the Lisbon Treaty. A majority of Irish people — 53.4 percent — voted against the EU’s Lisbon treaty in Thursday’s referendum, while 46.6 percent voted in favour… shortly after, in an interview on Irish public television station RTE, asked by the presenter what he felt about comments from other European leaders saying that ratification should continue, he said: “It’s a matter for those governments to proceed as they wish. Pressed whether he could rule out a “Lisbon Mark II”, the Irish leader replied: “I’m not prepared to surmise on that. …Other Irish politicians were scornful of the idea of continued ratification. European Commission president Jose Manuel Barroso earlier in the afternoon had said the remaining ratifications “should continue to take their course.” Patricia McKenna, a former Irish Green MEP and leading No side campaigner reacted angrily to the suggestion: “It is completely unacceptable that anyone in Europe should continue with ratification. “It shows complete contempt for the voice of the people. They simply fail to understand why people are voting No.” “It’s time for the EU bureaucrats and senior politicians to come to grips with the fact that they cannot forge ahead without the consent of the people.” …Mary Lou McDonald, a Sinn Fein MEP and the face of her party’s No campaign, objected to French European affairs minister Jean-Pierre Jouyet’s mid-afternoon suggestion that ratification continue and that some “legal arrangement” could be cobbled together. …Declan Ganley, the millionaire businessman and founder of Libertas, the centre-right anti-Treaty group campaigning around tax harmonisation issues and against European ‘red tape’, called the vote: “A great day for the Irish people and a great day for Irish democracy.” …Mr Ganley also warned against moves to push forward with the same text. “[European Union leaders] need to listen to the voices of the people. The people of France and Holland have already spoken and now the Irish are making their voice heard.”

A year ago, in some jest, I announced a new law (as in “of physics”) on the TechLiberationFront blog. “Harper’s Law” states, “The security and privacy risks increase proportionally to the square of the number of users of the data.” This rule generalizes to all information in digital form, and the suspected release of nuclear plans to the A.Q. Khan nuclear smuggling ring illustrates this well.

It is very difficult to control digital information — on any subject and in any context. It’s like a volatile gas: once it escapes whatever container or capsule you may have enclosed it in, you’re not getting it back. (Well, you’ll still have it but you won’t be able to deprive others from having it.) Nuclear plans, bomb-making plans, and the like will be very hard to contain, and relying on control of this kind of information for national or homeland security will be an unreliable protection.

Likewise, a poor way to protect privacy is to rely on rules about how information is used after it has been collected. If you really want privacy, you must never reveal the information you want to keep private. I’ve written a couple of times where various public officials have sought to redefine privacy so that it is consistent with their having access to personal information. Can’t be done.

In close relation are the large, personal-information-intensive programs that the federal government has been trying to develop. For example, our national ID law, the REAL ID Act, would put sensitive personal information and scanned identity documents into nationally accessible databases. Yet identity security requires keeping much of this information from being public. You can’t have both.

E‑Verify would use names paired with Social Security Numbers as identifiers in a national immigration background check system, yet it would rely on the inaccessibility of this information to the public for security against fraud. Can’t happen. (DHS is seeking access to Americans’ driver’s license and passport pictures, hoping to shore up this weakness, but watch for all the new problems that emerge when digital copies of the photographs on our identity documents escape into the wild.)

Harper’s Law extends to other issue areas as well, like copyright. It is very hard for copyrights in popular content to be enforced, and it will get harder. Artists and the entertainment industry are in a real bind trying to control access to information that they must also widely distribute. See Cato Unbound’s “Future of Copyright” discussion, going on now, for more interesting thinking in this area.

There you have it: advanced nuclear plans, databases of personal information, and copyright law are all peas in a pod to me.