Author Archive
Another Drug Raid Death
FBI agent Sam Hicks was killed this week when he and other police officers tried to serve a warrant at 6 am on the husband of Christina Korbe. Korbe says she thought criminal intruders were trying to break into her house. She called 911 and retrieved her handgun. Hicks was shot shortly after he entered the house.
This will provide an early test for the incoming Obama administration. Will it matter what Korbe really thought under those circumstances? Or will Obama and incoming attorney general Eric Holder simply cave into the pressure to line up behind the police agents and throw the book at Korbe no matter what?
For related Cato work, go here.
Colin Powell
The power of the Colin Powell endorsement is much exaggerated.
Thugocracy?
Michael Barone on “The Coming Liberal Thugocracy:”
In September, St. Louis County Circuit Attorney Bob McCulloch and St. Louis City Circuit Attorney Jennifer Joyce warned citizens that they would bring criminal libel prosecutions against anyone who made statements against Mr. Obama that were “false.” I had been under the impression that the Alien and Sedition Acts had gone out of existence in 1801-’02. Not so, apparently, in metropolitan St. Louis. Similarly, the Obama campaign called for a criminal investigation of the American Issues Project when it ran ads highlighting Mr. Obama’s ties to Mr. Ayers.
These attempts to shut down political speech have become routine for liberals. Congressional Democrats sought to reimpose the “fairness doctrine” on broadcasters, which until it was repealed in the 1980s required equal time for different points of view. The motive was plain: to shut down the one conservative-leaning communications medium, talk radio. Liberal talk-show hosts have mostly failed to draw audiences, and many liberals can’t abide having citizens hear contrary views. …
Corporate liberals have done their share in shutting down anti-liberal speech, too. “Saturday Night Live” ran a spoof of the financial crisis that skewered Democrats like House Financial Services Chairman Barney Frank and liberal contributors Herbert and Marion Sandler, who sold toxic-waste-filled Golden West to Wachovia Bank for $24 billion. Kind of surprising, but not for long. The tape of the broadcast disappeared from NBC’s Web site and was replaced with another that omitted the references to Mr. Frank and the Sandlers. Evidently NBC and its parent, General Electric, don’t want people to hear speech that attacks liberals.
Read the whole thing. Conservatives are not well-positioned to lodge complaints. Especially McCain.
Filed under: General; Government and Politics; Law and Civil Liberties
More Eavesdropping
Brian Ross of ABC News is reporting allegations from two whistleblowers who say the federal government eavesdropped on hundreds of international phone calls between Americans. The surveillance continued even when there was no indication of espionage or terrorism.
Question for the White House: Is this another disgraceful news report? After all, it reminds the terrorists that the NSA listens in on calls.
Questions for CIA director Michael Hayden and NSA director Lt. General Keith Alexander: When you say the ‘law’ is always followed, would you remind us as to what, exactly, constitutes illegal eavesdropping? And how many government officials and employees have been disciplined, discharged, or prosecuted for illegal surveillance over the past 10 years?
Question for Congress: What does Sen. Jay Rockefeller (D-WV) mean when he says an oversight hearing may be necessary? How many whistleblowers have to come forward to warrant a hearing?
For more, read Glenn Greenwald. For related Cato scholarship, go here.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Statism 101
Kentucky Governor Steve Beshear is trying to seize some online casinos. Unlike casinos that are on the land, online casinos are difficult for the government to tax. According to Mr. Beshear, if the tax collectors can’t get their paws on a business, then that business is a “leech” on the community. This type of thinking comes from Statism 101 and will require reading works not listed on the syllabus. Go here and here (pdf).
Filed under: General; Government and Politics; Tax and Budget Policy
Harvey Silverglate’s Libertarian Ire
Cato’s new adjunct scholar, Harvey Silverglate, is in the news again for combating political correctness on campus. From the New York Times: “Silverglate’s column described events at Harvard Law School, where a sexual harassment speech code was adopted after a student parody of a woman law professor sparked a huge outcry. The code prohibits speech that creates ‘an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment.’ In other words, parodists beware!”
For a related Cato work, check out David Bernstein’s book, You Can’t Say That!
A Presumption of Liberty
In 2006, there was an initiative in the state of Washington to ban smoking in public places. The scope of the ban was controversial; when government officials said it applied to private establishments, the ban was challenged by a small shop, the American Legion Post #149. The Post has seven employees; six were smokers and the seventh had no objection to smoking on the premises. The state supreme court nevertheless upheld the ban.
A strong dissent was filed by Judge Richard Sanders. Sanders began his opinion by observing the way in which the state government was attempting to frame the question before the court. The state’s lawyers asserted that the smoking ban ought to be “presumed constitutional and such presumption may be overcome only by proof beyond a reasonable doubt.” Not so, wrote Sanders. ”If any presumption exists, it is a presumption of liberty, wherein the State must prove the necessity and propriety of its restrictions on liberty.”
Sanders then referred readers to two works available from Cato’s Book Store, Randy Barnett’s Restoring the Lost Constitution: The Presumption of Liberty and The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Sanders then analyzed the smoking ban more closely and concluded that it is unconstitutional. Read the whole thing.
Randy Barnett delivered the keynote address here at Cato on Constitution Day, where he elaborates on his approach to constitutional interpretation. Check it out.
More on the Calvo Home Invasion
Yesterday, Washington Post columnist Marc Fisher had a nice piece about the Calvo incident. Mr. Fisher was in attendance at our policy forum last week . Also, the popular blog site Boing Boing picked up our event and our podcast interview with Mayor Calvo. Today, we have a podcast interview with Radley Balko, author of the Cato study, Overkill.
Filed under: Cato Publications; General; Law and Civil Liberties
Calvo Raid Justified?
The police have now reviewed and justified the violent break-in of Berwyn Heights, Md., mayor Cheye Calvo’s home a few weeks back. The police kicked in his front door without announcing themselves, and shot his two pet dogs dead. The police later cleared Calvo of any wrongdoing but insisted that their raid tactics were appropriate. A separate FBI investigation is under way.
We’re hosting a forum on no-knock raids here next week. Mayor Calvo will be here to tell his story and we’ll also hear from Radley Balko, author of the Cato study Overkill, and Peter Christ, co-founder of Law Enforcement Against Prohibition. Details here.
Speedy Trial?
Joseph Shepard sat in local jails for almost two years on drug related charges. According to the St. Louis Post-Dispatch, he’s a man the system forgot–ignored by prosecutors, judges, and his own attorney. (Via How Appealing).
In North Carolina, the Courts have ruled that the busier the state gets, the more we need to forget about the constitutional rule requiring speedy trials. And the drug war makes the courthouse a very busy place indeed.
Militarized Policing
Glenn Greenwald has a good roundup of militarized police actions in St Paul.
Radley Balko looks at police actions in Denver.
For related Cato work on this disturbing trend, go here and here. We’ll be hosting a forum on no-knock police raids here at Cato next week.
Justice Dept Backs Up After KPMG Ruling
The New York Times reports that the Justice Dept. is rolling back its bullying tactic of penalizing companies that reimburse their employees’ legal fees during investigations and trials. This move is mostly show–to make the feds seem reasonable and open to suggestions. But it is really just a reaction to the department’s defeat in today’s KPMG case (pdf) and a lame attempt to stave off legislation that would be more meaningful and permanent.
Attorney Richard Janis details these issues in this new Cato report.
For still more background, go here, here, and here.
DC Government Finally Issues Heller’s Handgun Permit
Here’s the story from today’s Washington Post.
Keep an eye out for Brian Doherty’s forthcoming book about this landmark case!
Filed under: General; Government and Politics; Law and Civil Liberties; Regulatory Studies
Juror Becomes Fly in the Ointment
It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.
But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
That’s a fair question. It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.
1. Court precedents say jurors have no right to nullify. Well, yes, that is undeniable. But that’s like someone saying in 1950 that court precedents tell us that ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution. I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way). Judges do remove jurors from time to time, but there is no punishment. At least not yet.
2. Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution. The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough. Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification. Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).
3. Jury nullification undermines the rule of law. This is simply another variation of objection #2 above. There is a logical fallacy to this objection. Jury nullification is assumed to be improper–so it undermines “the law.” It is like saying a presidential pardon undermines the “rule of law.” But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases). This is the way in which to understand jury nullification. The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about. Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases. Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.
Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases. But that article has revived a debate that we should all welcome. For much more on this subject, go here, here, here, and here.
Colbert Nails the Drug Warriors
Stephen Colbert on the Gary Ross case.
Thanks Colbert. Interestingly, bad-ass Michael Levine spoke at my Drug War conference several years back. Levine acknowledges that we waste billions on drug interdiction and other follies, but he can’t bring himself to join other cops that are for calling off this war. For additional Cato research, go here.
Criminal Law Perverted
Federal prosecutors are patting themselves on the back for branding Charles Lynch (no relation) as a criminal that must be locked up for five years. Charles Lynch ran a medical marijuana dispensary in California. Reason’s Nick Gillespie has the outrageous details here.
For related Cato work, go here and here.
Milton Friedman on Drug Prohibition
Since it’s Milton Friedman’s birthday today, take a moment to watch this brief video clip. It is an interview conducted by our friends at the Marijuana Policy Project shortly before Dr. Friedman passed away.
For related Cato work on the disastrous drug war, go here.
Steve Chapman on Consent Searches
Steve Chapman takes a look at the problem of ‘voluntary’ roadside searches. Excerpt:
If I approach as you pull into a parking space and ask if you’d mind my rummaging through your car, the chances are at least 90 percent that you’d decline. But if a police officer stops you with the same request, the chances are higher than 90 percent that you’d agree. Something about that badge makes citizens eager to be helpful.
Or maybe not. In civics class and 4th of July speeches, we are told that American democracy rests on the consent of the governed. But interactions with the police serve as a useful reminder that government rests less on voluntary cooperation than on fear and force. A nation is free to the extent it prevents the rulers from bullying and coercing the ruled. By that standard, American society still has a way to go.
Read the whole thing.
Learn what your rights are. Get the Busted dvd. Related Cato work, here.
The FBI Turns 100
This weekend the FBI will celebrate its 100th anniversary. As you might expect, the Bureau is trumpeting its record, i.e., the FBI has protected America from gangsters, Nazis, Communists, mobsters, terrorists, and so forth. The image has always been super-competent, super-honest agents who hunt down the evil-doers.
But what about the actual record of the FBI? Sen. Charles Grassley (R-Iowa) has long taken a skeptical view of the FBI and I think his remarks from a 1997 oversight hearing are on the mark:
[M]y father’s occupation was farming in Iowa. And in the ’40s and ’50s, when I was growing up, he taught me to respect the FBI. I came to Washington with a great deal of respect for the FBI. I know that my criticism of senior management, in the last year probably, doesn’t show that I was brought up that way. But it’s not easy for me to think of my father’s respect for the FBI, that they could do no wrong, and find some of the things wrong because, in decades of public service, I have never known an agency that right now is in need of more oversight, including congressional oversight, than the FBI. And that’s after a year of digging into issues that the Bureau has been involved with.
We all respect the good things that the FBI does. We know that there are thousands of agents out there in the field that are putting their lives on the line. And most Americans have the image of the FBI as very good, beyond reproach, the untouchables. The FBI has cultivated that image…. But serious problems with the Crime Lab punctured that image, also Ruby Ridge and Waco have. Beyond the veneer is an ugly culture of arrogance that uses disinformation, intimidation, empire building, to get what it wants.
And I’ve got some documentation, if you’re interested in my feeling about intimidation and disinformation. It resists oversight by an independent body. It resists cooperation and information-sharing with state and local law enforcement. Now I want to show some examples of these. I find that the FBI sometimes uses intimidation tactics when it wants to get its own way. When I have made inquiries, sometimes they simply refuse to respond. That’s not what legitimate oversight is about. It suggests that there’s something to hide. And that’s why problems like the FBI Crime Lab are allowed to exist and fester so long without detection — in that case, maybe about eight years.
While Congress has given the FBI more money than can be spent wisely — for instance, we tripled the amount of money, in just five years, for combatting terrorism. It reminds me of how Congress mindlessly pumped up the defense budget during the ’80s, and all that we did was increase the price of what we bought — hammers, pliers and toilet seats. In this case, I think that we need to carefully examine every nook and cranny of the FBI’s budget to make sure we’re getting what was advertised. And I intend to be a part of that effort in the coming months, because what I have found is that senior management within the FBI puts too much focus on its image and budget and not enough on product, and that product should be law enforcement and public safety.
Like Senator Grassley says, we should acknowledge FBI successes. But a proper appraisal of the Bureau’s actual record must take into account both the good and the bad. Two days ago, Cato hosted an event about the FBI’s record. The panel included the FBI’s official historian, Dr. John Fox, and an outside academic expert, Dr. Athan Theoharis. To view the event, go here.
Here are 10 people/events that the FBI would rather not discuss.
- Martin Luther King
- Richard Jewell
- Brandon Mayfield
- Joseph Salvoti
- Dr. Frederic Whitehurst
- Randy Weaver
- Sibel Edmonds
- Anthony Hodgson
- Steven Hatfill
- The Branch Davidians.
For related Cato work, go here, here, and here.
Supreme Court Rules, But Behold the Rigmarole
Dick Heller won in the Supreme Court, but the D.C. government is creating a rigmarole of a process for residents to exercise their constitutional right. Looks like everyone one is going to need a lawyer to guide them through the morass—at least in the near term.
Washington Post columnist Marc Fisher says that DC officials held a press conference where they seemed to be amused by the cumbersome registration process they have created: “There are circumstances where it could take months,” Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting “heh-hehs” of mischievous delight. Read the whole thing.
Al-Marri Ruling
Yesterday, a federal appellate court finally issued its ruling in the Al-Marri case. This ruling highlights the most important constitutional issues that have arisen since 9-11, namely, the power of the executive vis-a-vis Americans here at home. True, Al-Marri is a citizen of Qatar, but Bush’s lawyers have been clear that what they’ve done to Al-Marri (incommunicado imprisonment in a military brig) can be done to any American suspected of terrorism. As a practical matter, it means Americans can be arrested without warrants and jailed without trials. The Padilla case was never really resolved by the courts, the momentous legal issues involved were left hanging out there once he was transferred into a civilian court to face criminal charges. To clear up the uncertainty, let’s hope the Supreme Court will hear this matter next term.
I’m still studying the 200+ pages in the ruling, but that’s my quick take. For additional info, go here and here (pdf).
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Federal Prosecutors
Today, Cato is publishing an article about some disturbing trends that have emerged in federal criminal law. Washington, D.C. attorney Richard Janis explains that business executives saw what happened to Arthur Andersen when that firm tried to defend itself by going to trial. To avoid the potential catastrophe of a full-blown trial and a criminal conviction, firms will now do almost anything to placate federal prosecutors and avoid an indictment, including waiving the attorney-client privilege and firing employees at the direction of the government — even if the firm concludes that such employees were just following directions and are otherwise innocent of any wrongdoing.
Janis observes that federal prosecutors have so much leverage over business firms these days that the very nature of our adversary system of justice is in jeopardy. Companies must too often cough up millions of dollars for “settlements” that are wildly out of proportion to any perceived wrongdoing.
Janis’s paper is short but potent. To check it out, go here.
City Life: Why Is It So Bad for So Many?
Why is city life so bad for so many? Here are some possibilities:
- Maybe because the government has a lousy a school system.
- Maybe because the government has a lousy justice system.
- Maybe because the government has a lousy tax system.
- Maybe because the government has a lousy welfare system.
- Maybe it is a combination of lousy policies.
Will Bush Fool Us Twice?
Today the Senate is expected to vote on changes to the FISA law. President Bush wants immunity for the telecoms because that will take the matter away from those pesky courts–which keep declaring his initiatives to be contrary to law. The Dems claim that we get sensible and desirable FISA rules in return for the telecom immunity deal. Just assume for a moment that that is true, what assurance do we have that such rules will not be bypassed with one of those fine print signing statements?
Reporter and author Charlie Savage:
Early on in the administration, Cheney arranged it so that all legislation that was going to be headed toward the president’s desk to be signed would be routed through the vice president’s office, allowing David Addington to take part in the bill-vetting process. Normally signing statements would be crafted by the Office of Legal Counsel, the White House Counsel’s office, the Office of Management and Budget. The vice president’s office was added to that mix, and this became another vehicle for the expression of these very strong views of executive power, this very aggressive conception of what it is that is beyond Congress’ ability to regulate when it comes to the executive branch.
Recall that after Congress tried to write new laws concerning interrogation practices run amok, Bush seemed to relent, but then quietly inserted a signing statement that essentially said he would interpret this new law in a way that would be consistent with his power as command-in-chief of the armed forces, which seemed to reduce the new law to nothing but words on paper. Will Bush fool everyone again?
For more on signing statements, go here.
Remembering Esequiel Hernandez
Tonight PBS is airing a documentary about Esequiel Hernandez. Hernandez was a high school student who was shot and killed by U.S. Marines on the Mexican border in 1997. The soldiers were on an anti-drug mission. After the killing, all military personnel were removed from the border, but President Bush ordered troops back to the border shortly after 9/11. For a 3 minute clip/preview, go here.
For more about the role of the military in the homeland, go here. For more about the militarization of police tactics, go here.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
“Vascular Restraint”
Tennessee Bureau of Investigation is looking into an officer’s chokehold. The choke was not used against a violent individual. It was used against a young man who was already in handcuffs. Suspicion of marijuana possession. The young man quickly faints.
Video clip here. For more on the drug war, go here. For more about doublespeak, go here.
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