Author Archive
John Yoo on Civilian Trials for Terrorists
Yesterday, the Wall Street Journal published an article by John Yoo that criticized the Obama administration’s decision to prosecute Khalid Sheik Mohammed (KSM) and several of his fellow Guantanamo prisoners in civilian court. Yoo makes too many claims for me to respond to in a blog post, but let me address a few.
According to Yoo, “The treatment of the 9/11 attacks as a criminal matter rather than an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.” That is an odd thing to say for several reasons. First, it is all over the news: We are still very much at war. Second, even if Obama pulled U.S. troops out of Afghanistan and Iraq, would the United States really be “crippled” in the fight against bin Laden? ”Crippled” suggests the U.S. is on the verge of joining Costa Rica or Belize in terms of our military strength. Farfetched. Third, the Bush administration also treated the 9/11 attacks as a criminal matter when it indicted and prosecuted Zacarias Moussaoui in civilian court. Yoo seems to think that that call was mistaken, but did it ”cripple” the U.S.? Did the Bush administration, in effect, declare that the U.S. was “no longer at war”? Of course not. So why does Yoo make that claim now? Odd.
Next, Yoo complains that by bringing KSM to New York for a civilian trial, the prisoner will get to “enjoy the benefits and rights that the Constitution accords to citizens and resident aliens.” This is another odd statement because the benefits of a civilian trial (public trial, jury trial, calling witnesses, confronting adverse witnesses, etc) are not limited to citizens and resident aliens. After all, Asian tourists and illegal immigrants from Mexico, to take two examples, are not “citizens” or “resident aliens.” If a federal prosecutor were to accuse them of a crime, they would get a trial in civilian court. A claim that the government could deny, say, a nonresident alien from China a civilian trial would be totally at odds with American constitutional law. Yoo may disagree with that law, but if he does, he should have made that clear because he left a misleading impression.
Third, Yoo calls the Moussaoui trial a “circus” because it provided Moussaoui with a “platform to air his anti-American tirades.” Well, to start, just because Yoo calls a trial a “circus” does not make it so. The federal judge in the Moussaoui case did what we would expect a good American judge to do–that is, give the person who is accused of the crime a fair opportunity to speak and to offer a defense. At the same time, the judge must maintain order in the courtroom and anyone who becomes disruptive (including the accused) can be removed. The potential problem of a “tirade” is nothing new and is not, of course, limited to persons who share bin Laden’s twisted worldview. Some recent examples include the Unabomber and the shooter at the Holocaust museum. In short, it is a weak argument to critique our system of civilian trials because the defendant may want to insist on saying something that is unpopular, unpleasant, or incoherent. And, at the time of sentencing, a trial judge can respond, as Judge William Young did when he sentenced Richard Reid to life behind bars.
For more on the subject of military commissions, go here and here. For more on John Yoo, go here and here.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Gitmo Prisoners to NY for Trial
Today, Attorney General Eric Holder announced that he plans to move five prisoners from Guantanamo to New York for a civilian trial. Holder says the prisoners masterminded the 9/11 attacks and will now face the death penalty.
Some journalists and commentators are calling this move a wholesale repudiation of the Bush policy. Actually, no. Holder also announced that five other Gitmo prisoners will soon be put on trial before a military commission. Thus, the Bush framework essentially remains in place. The Executive will decide on a case-by-case basis who will be held prisoner (overseas, Gitmo, here in the USA), and who will be tried in civilian court, and who will be tried before a military commission.
By way of background, these prisoner controversies (habeas corpus, waterboarding, trial by commissions) fall into three basic categories: (1) detention/imprisonment; (2) treatment (including interrogation practices); and (3) trial issues. Today’s announcement concerns trials.
If there is to be a trial for persons accused of terrorism, it ought to be in civilian court. Courts martial are for persons actually in the U.S. military (the Fort Hood shooter). Military “commissions” are a hybrid that is nowhere mentioned in the Constitution. It is mistake for Obama to retain the commission system because it is (a) dubious to begin with, and (b) can be whimsical with respect to the people that end up there. Even the former Gitmo prosecutor has voiced his objections to the system!
Bin Laden and his cohorts murdered some 3,000 people on 9/11. It is lamentable that they did not all go down fighting at Tora Bora. But we do have to have policies in place for captures. Boiled down, the U.S. should follow the Geneva Convention for prisoners and, for trials, the procedures set out in the Constitution.
For additional Cato work on this subject, go here and here.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
Problems with 911
Michael Crowley, senior editor at The New Republic, recounts some nightmare episodes with the 911 Emergency Response System in the current issue of Reader’s Digest. Here’s an excerpt:
If there’s one thing we think we can count on, it’s that a frantic call to 911 will bring a swift and effective response. Government’s first priority, after all, is protecting its citizens. But a spate of recent cases reveal shocking flaws in our national emergency response system–at a cost measured in lives.
One of those cases involved a young college student at the University of Wisconsin. She dialed 911 and then hung up without saying anything. Before the line was disconnected, however, there were screams and sounds of a struggle caught on tape. The operator claims she could hear no noise–so she did not dispatch the police or try to call back. Later that day, the college student, Brittany Zimmerman, was found beaten to death in her apartment. An audio recording of some of the 911 nightmares can be found here.
Michael Crowley stresses the need for better trained operators and perhaps penalties for the people who tie up the lines with frivolous calls. That’s all well and good, but more importantly, we must all acknowledge the limits of the 911 system and take responsibility for our own safety. As the libertarian sheriff, Bill Masters, points out “If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed.”
For related Cato work, go here.
Update: New Jersey State Police are reviewing how a recent 911 call was handled. A Catholic priest called 911 as he came under criminal attack in his church.
Prosecutorial Immunity
Last week the Supreme Court heard the case of Pottawattamie v. McGhee. The gist is whether prosecutors who fabricate evidence against persons accused of crime can be sued and held liable for money damages, or whether they are immune from suit. The Crime & Federalism blog reports on the back-and-forth at oral argument in a post entitled “Prosecutors should feel the chill.”
Cato filed an amicus brief in the case. A ruling is expected by the Supreme Court by June.
Greenwald on the Arrar Ruling
Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day. Here’s an excerpt:
Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing. I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.
Read the whole thing. Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
CBS News Reports on Prospects for Drug Policy Reform
CBS News has a good report out on recent developments in drug policy, including extensive coverage of the Cato report, Drug Decriminalization in Portugal. Here’s an excerpt:
Portugal’s case is important, Greenwald says, because it provides hard evidence that removes the debate from the realm of speculation.
“If you’re the first state to do it, there’s really no way you can point to evidence of what will or will not happen. … It’s just theory and it’s very abstract,” he said. “The more examples that arise and the more that you can prove that the sky doesn’t fall in,” he said, the more politically feasible drug liberalization will become in the U.S.
So far, Portugal has largely flown under the radar, even in drug policy circles. But Greenwald says that, six months after his paper was released, he’s getting more invitations than ever to present it. In August, New York Times columnist Nick Kristof cited it in a column praising Webb’s reform push.
Read the whole thing. For more Cato scholarship on drug policy, go here.
Obama, International Law, and Free Speech
Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech. This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:
“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh — then a professor at Yale Law School — “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.
Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.
In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.
Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.
Read the whole thing.
More on ‘Hate Crimes’
Law professors James Jacobs and Kimberly Potter make an interesting point:
Laws do not spring forth from a groundswell of public opinion, but rather are the product of lobbying by interested (”interest”) groups that must mobilize support among politicians. The hate crime laws are passed because of the lobbying efforts of organizations that advocate on behalf of blacks, Jews, gays, and lesbians, a few other ethnic and nationality groups, and in some cases, women. …Regardless of what it accomplishes, the passage of legislation boosts morale and the status of the organizations and their constituencies.
That’s from their excellent book on the subject, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press, 1998), p. 66.
If liberals write laws to “send messages,” can social conservatives do the same thing if they control the legislative assembly? Perhaps enact a criminal law against, say, adultery. Note that the point is not necessarily that the law be actually enforced or have any impact as far as reducing adultery in the jurisdiction. If the point is simply to “send a message,” liberals are going to be hard-pressed to lodge objections to conservative symbolic lawmaking.
For more on hate crimes, go here and here.
George Will and Drug Decriminalization
George Will’s latest column takes a look a drug policy and the views of the new drug czar, Gil Kerlikowski. Notably, Will mentions Portugal’s experience with decriminalization of all drugs since 2001 and says Kerlikowski is aware of the Portuguese policy as well. Cato published a report on Portugal’s drug policy in April and the author, Glenn Greenwald, discussed his findings at a Cato policy forum here. George Will’s shifting views on drug policy (toward liberalization) reflect the shifting views of other conservative pundits and the public more generally.
Will appeared on ABC on Sunday, and discussed his views on drug policy. Watch:
For more Cato work on drug policy, go here, here, and here.
Fact-checking Drug Czar Barry McCaffrey
I appeared on the CNN program Lou Dobbs Tonight last Thursday (Oct. 22) to discuss the medical marijuana issue and the drug war in general. There were two other guests: Peter Moskos from John Jay College and the organization Law Enforcement Against Prohibition (LEAP) and Barry McCaffrey, retired General of the U.S. Army and former “Drug Czar” under President Bill Clinton.
I was really astonished by the doubletalk coming from McCaffrey. Watch the clip below and then I’ll explain two of the worst examples so you can come to your own conclusions about this guy.
Doubletalk: Example One:
Tim Lynch: “Some states have changed their marijuana laws to allow patients who are suffering from cancer and AIDS–people who want to use marijuana for medical reasons–they’re exempt from the law. But there’s a clash between the laws of the state governments and the federal government. The federal government has come in and said, ‘We’re going to threaten people with federal prosecution, bring them into federal court.’ And what the [new memo from the Obama Justice Department] does this week is change federal policy. Basically, Attorney General Eric Holder is saying, ‘Look, for people, genuine patients–people suffering from cancer, people suffering from AIDS–these people are now off limits to federal prosecutors.’ It’s a very small step in the direction of reform.”
Now comes Barry McCaffrey: “There is zero truth to the fact that the Drug Enforcement Administration or any other federal law enforcement ever threatened care-givers or individual patients. That’s fantasy!”
Zero truth? Fantasy? This report from USA Today tells the story of several patients who were harassed and threatened by federal agents. Excerpt: ”In August 2002, federal agents seized six plants from [Diane] Monson’s home and destroyed them.”
This report from the San Francisco Chronicle tells the story of Bryan Epis and Ed Rosenthal. Both men, in separate incidents, were raided, arrested, and prosecuted by federal officials. The feds called them “drug dealers.” When the cases came to trial, both men were eager to inform their juries about the actual circumstances surrounding their cases–but they were not allowed to convey those circumstances to jurors. Federal prosecutors insisted that information concerning the medical aspect of marijuana was “irrelevant.” Both men were convicted and jailed.
This report from the New York Times tells readers about the death of Peter McWilliams. The feds said he was a “drug dealer.” McWilliams also wanted to tell his story to a jury, but pled guilty when the judge told him he would not be allowed to inform the jury of his medical condition. Excerpt: “At his death, Mr. McWilliams was waiting to be sentenced in federal court after being convicted of having conspired to possess, manufacture and sell marijuana…. They pleaded guilty to the charge last year after United States District Judge George H. King ruled that they could not use California’s medical marijuana initiative, Proposition 215, as a defense, or even tell the jury of the initiative’s existence and their own medical conditions.” The late William F. Buckley wrote about McWilliams’ case here.
Imagine what Diane Monson, Bryan Epis, Ed Rosenthal, and Peter McWilliams (and others) would have thought had they seen a former top official claim that federal officials never threatened patients or caregivers?!
Filed under: General; Government and Politics; Law and Civil Liberties
‘Reefer Sanity’
Kathleen Parker in the Washington Post:
Arguments for and against decriminalization of some or all drugs are familiar by now. Distilled to the basics, the drug war has empowered criminals while criminalizing otherwise law-abiding citizens and wasted billions that could have been better spent on education and rehabilitation.
By ever-greater numbers, Americans support decriminalizing at least marijuana, which millions admit to having used, including a couple of presidents and a Supreme Court justice. A recent Gallup poll found that 44 percent of Americans favor legalization for any purpose, not just medical, up from 31 percent in 2000.
Read the whole thing. For more Cato work, go here.
Drug War Insanity Goes Up in Smoke
As my colleague David Rittgers notes below, the announcement by the Department of Justice that it will no longer seek to arrest medical marijuana users is a breakthrough for common sense in federal drug policy.
It is bizarre that it takes a major policy announcement to spell out what a waste of police and court time it is to investigate the ill people who use medical marijuana. Historians will surely look back on this period and ponder how our government could have seriously embraced the opposite policy, in the same way we look back at the strange days of alcohol prohibition.
The Obama administration should be taking much bolder steps to stop the criminalization of drug use more generally. More and more people have come to recognize that the drug war has been given a fair chance to work, but it has proved to be a grand failure.
Do We Need a Law against Texting While Driving?
Radley Balko exposes the politicians who play the game of enacting laws for symbolic purposes. In this game, whether the proposed law has any actual impact on the supposed problem seems entirely beside the point. Excerpt:
Maryland just passed a texting ban, but state officials are flummoxed over how to enforce it. The law bans texting while driving but allows for reading texts, for precisely the reasons just mentioned. But how can a police officer positioned at the side of a highway tell if the driver of the car that just flew by was actually pushing buttons on his cellphone and not merely reading the display screen? Unless a motorist is blatantly typing away at eye level, a car would need to be moving slowly enough for an officer to see inside, focus on the phone, and observe the driver manipulating the buttons. Which is to say the car would probably need to be stopped—at which point it ceases to be a safety hazard.
Read the whole thing. Until this feel-good-gesture-legislation game is broken up, the number of laws will continue to multiply. And that means the sphere of government expands while the sphere of liberty recedes.
Felony Franks
The Wall Street Journal has an article today about a small businessman in Chicago, James Andrews. Mr. Andrews started a hot-dog stand and hired ex-convicts as employees. The name “Felony Franks,” came to him and he thought it was catchy. Since it was his business, Mr. Andrews didn’t think twice about the name. Enter Chicago Alderman Robert Fioretti. The alderman doesn’t like the name and will not “permit” Mr. Andrews to set up signs to attract more customers. (Btw, How many people like the name Robert Fioretti anyway? Maybe it should be changed to … eh, never mind) Neighborhood “activists” are also setting up meetings to discuss the hot-dog business and the “exploitation” of the workers. Kevin Jones, 42, an employee at Felony Franks, tells the reporter he does not feel exploited, “Working here allows me to provide for myself and my family.”
What a farcical situation. First, the politicians manufacture scores of felons. Next, the pols have their own ideas on how to “help” the ex-cons return to civil society. Those ideas entail spending taxpayer money.
The Constitution Is a Bestseller
According to today’s Washington Post, the Cato pocket Declaration of Independence and Constitution have made the bestseller list!
This is going to make establishment Washington nervous — with good reason.
Order your copy here. More here and here (pdf).
Filed under: Cato Publications; Law and Civil Liberties; Political Philosophy
House Approves Hate Crimes Measure
Last night, the House of Representatives approved a defense spending measure that included a totally unrelated bill that would ban so-called “hate crimes.”
I’ve testified twice against federal hate crimes proposals. Here’s the case against the law (in brief):
First, the federal hate crime law is unconstitutional because it is beyond the powers of Congress.
Second, the law will not prevent violent crime. Anyone already inclined to kill or beat up another human being is not going to reverse course because Congress passes a new law against violence motivated by bias.
Third, the law does take the state too close to the realm of thought crimes. In order for a prosecutor to prove the “hate” aspect, detectives have to dig into a person’s life, thoughts, writings, conversations, etc., to gather the “evidence.” There’s no good reason to go there because — let’s remember — violent acts are already against the law!
Obama, Chicago and the Olympics
The decision to hold the Olympics in Rio may be bad news for Chicago, but it may be great news for the country!
For more about Mr. Obama’s wrongheaded policies, go here and here (pdf).
Cheye Calvo Reflects on SWAT Shooting
Cheye Calvo is the DC-area small-town mayor who had his two pet dogs shot and killed by a botched drug raid about a year ago. In an article to be published in this Sunday’s Washington Post, Calvo reflects upon his experience — not just the raid itself, but on the actions of the police department afterward. Excerpt:
I remain captured by the broader implications of the incident. Namely, that my initial take was wrong: It was no accident but rather business as usual that brought the police to — and through — our front door.
In the words of Prince George’s County Sheriff Michael Jackson, whose deputies carried out the assault, “the guys did what they were supposed to do” — acknowledging, almost as an afterthought, that terrorizing innocent citizens in Prince George’s [County] is standard fare. The only difference this time seems to be that the victim was a clean-cut white mayor with community support, resources, and a story to tell the media.
What confounds me is the unmitigated refusal of county leaders to challenge law enforcement and to demand better — as if civil rights are somehow rendered secondary by the war on drugs.
Mr. Calvo has been a super advocate for reform — he has given up countless hours of his spare time to study and speak on this subject so that fewer people will be victimized the same way his family was. He spoke at a Cato Hill Briefing over the summer.
Calvo told his story at Cato last year.
For related Cato research, go here and here.
Obama: I Want Those Patriot Act Powers
Yesterday, President Obama’s lawyers informed members of Congress that the president does not want any provision of the Patriot Act to expire. Turns out that Obama wants to have the sweeping powers. This is just the latest example of the cacophony that pervades Washington. When Bush was in the White House, the Dems postured against his runaway spending, his military quagmires, and his constitutional violations. With Obama in the White House, Bush’s most misguided policies either continue or worsen.
Obama is in the news today for his “off-the-record” comment about Kanye West. It would have been better had a reporter overheard Obama saying something like, “John Ashcroft was a terrific Attorney General, but I’ll never admit that publicly.”
For related Cato work, go here and here.
Some Good Spending For a Change
Cato analysts regularly identify areas where the government is either wasting money or spending money on unconstitutional or inappropriate matters. There are a few areas, however, where the state does not spend money where it ought to.
A case in point is where the state has mistakenly locked up an innocent person. Believe it or not, in some jurisdictions no compensation is offered to the victims. Zero!
The Associated Press has a story today about a new Texas law that will pay about $80,000 in compensation to victims for each year they were wrongly incarcerated. Other states should follow suit. Inaction is inexcusable.
(H/T: Grits for Breakfast)
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