Commentary

Above the Law

What recourse does a citizen have when government employees violate the law and do harm, and then they are protected by the government? Government was created to protect person and property and ensure liberty, but it has increasingly become the abuser rather than the protector.

In all too many cases, asset forfeiture laws have resulted in totally innocent individuals having their money or other assets taken from them by federal, state or local law enforcement officials even though they have not been convicted of any crime. The Institute for Justice has long been a leader in fighting government abuse of the individual, including asset forfeiture. As The Wall Street Journal reported this past Thursday, Randy Sowers, represented by the Institute for Justice, “had $62,936.04 seized from his bank account because of the pattern of his deposits, though the money was legally earned. When Mr. Sowers challenged the seizure, Assistant U.S. Attorney and Chief of the Asset Forfeiture and Money Laundering Section Stefan Cassella tried to negotiate a settlement that would allow the government to keep some of the money.” Most people understand what Mr. Cassella is trying to do; i.e., steal Mr. Sowers‘ hard-earned money, because Mr. Sowers had the nerve to go the press to disclose Mr. Cassella’s abuse of power. By way of contrast to Mr. Cassella’s despicable behavior, the first two directors of the office of Asset Forfeiture, Judge John Yoder and Brad Cates, both appointed during the Reagan administration, have been leaders in a campaign to repeal asset forfeiture because they recognized that it has been often abused and is beyond repair.

Another organization that fights for the public interest against the government is Judicial Watch. It obtained the release of records showing that the Internal Revenue Service violated federal tax law by giving the Obama FBI and Justice Department more than a million pages of “confidential IRS returns from 113,000 nonprofit social 501 (c)(4) welfare groups.” Judicial Watch President Tom Fitton stated: “The FBI and Justice Department worked with Lois Lerner and the IRS to concoct some reason to put President Obama’s opponents in jail before his re-election. How can the Justice and FBI investigate the very scandal in which they are implicated?”

People such as Lois Lerner do not act alone. There were obviously many people involved in the chain of deleting her emails and the emails of other officials, and illegally transmitting confidential IRS documents. Why did not more of these people speak up — a lack of moral compass, ignorance or cowardice? The Nuremburg trials at the end of World War II established the principle that just following orders is not an excuse when the order is illegal or morally wrong. (Note: this past week a 94-year old man was convicted and sentenced in Germany for being an accomplice at Auschwitz, even though he was just an accountant at the camp more than 70 years ago.)

Many government officials betray the people by failing to do what is required in order to prevent harm. An ongoing example is the failure of regulatory agencies to do serious cost-benefit analysis before promulgating costly and destructive regulations. An example is the new Foreign Account Transactions Compliance Act, which is causing great personal harm to Americans living abroad and a loss of foreign investment, which diminishes job and economic growth in America. The officials at the Obama Treasury never did the cost-benefit analysis they were supposed to do, even though they were repeatedly told (by many responsible organizations) that the Foreign Account Transactions Compliance Act would do great damage.

If the government will not act to protect the citizens from government officials, what can be done? One action is to take the government to court as organizations like the Institute for Justice and others do. But that is a long and costly process. Some religious groups “shame” members who do not live up to their standards. In the age of the Internet, it is increasingly possible to post, for all to see, the names and faces of those in government who fail to follow the law or fulfill their constitutional and ethical and moral responsibilities — in order to try to shame them. It takes some effort — but it is not impossible — to get the names of all of those who might be directly or indirectly complicit in an illegal act in government and then reveal them on the Internet.

The folks in government will, of course, try to keep the names of the miscreants secret, by claiming that revealing them is a threat to their security. This is only true with those relatively few in legal covert operations. We now require police officers to wear name badges and even cameras to protect innocent citizens from abuse, even though the police are at far more physical risk than any IRS or Treasury Department bureaucrat.

Perhaps some clever people can develop websites to shame those in government (even the minor actors) who misbehave and at the same time, praise those by name in the government bureaucracy who go above and beyond what is expected to help their fellow citizens. Yes, sunlight is the best disinfectant.

Richard W. Rahn is a senior fellow at the Cato Institute and chairman of the Institute for Global Economic Growth.