Archive for the ‘Law and Civil Liberties’ Category
A Jury’s ‘Secret’ Power
This month’s Wisconsin Lawyer has an article entitled “Nullification: A Jury’s ‘Secret’ Power,” by Erik R. Guenther. Here is an excerpt:
When “[t]he purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge,”should the jury be kept in the dark about its fundamental power to decide the justness of the law as applied in a particular case? Should the power remain a secret (which is referred to only by a pejorative – nullification) rather than be acknowledged as an inherent, appropriate, and recognized part of the jury function?
Read the whole thing. The feds are still fighting hard to keep the jury’s power ‘secret’—so hard that free speech must be punished.
Reason.tv on Gibson’s Ongoing Battle With the Federal Government
Reason.tv has posted an excellent video on the continuing saga of the Justice Department’s war on Gibson guitars. In August, I blogged about the Justice Department’s latest raid on the Gibson guitar factory. Six months later, the company has yet to be charged with anything.
Gibson was allegedly importing wood for guitar fingerboards in violation of Indian law, which in turn violates the Lacey Act. The Lacey Act criminalizes the trafficking in certain goods that were taken in violation of other countries’ laws, and it was originally passed to make domestic trade in poached animals a crime in the United States.
But the Act has expanded far beyond its original purposes and it now is used to prosecute companies for violations that have nothing to do with environmental protection, such as labor laws. The Lacey Act is also inherently vague and malleable. It allows government officials to interpret foreign laws and, as I wrote in my original post and as Gibson CEO Henry Juszkiewicz points out in the video, it even permits US officials to ignore the other country’s interpretation of its own laws. As a result, the Lacey Act has been a major source of overcriminalization, which is an issue that Cato has been fighting for some time.
Check out the video below.
The Modern Voting Rights Act Is Unconstitutional
I’ve written previously about how the current Texas redistricting saga — a decennial battle in that and many states — shows how the Voting Rights Act in its moden incarnation both doesn’t work and conflicts with the Constitution. The Supreme Court’s ruling last month telling a three-judge district court in San Antonio to go back to the map-drawing board did not begin to the address these deeper issues, which will surface again, perhaps as soon as this fall in a case out of Shelby County, Alabama.
Today I published an op-ed on the subject in the National Law Journal. Here’s an excerpt:
Originally conceived as a check on states where discrimination was prevalent in the 1960s, Section 5 [of the VRA] requires certain jurisdictions – a bizarre list that includes some of the Old Confederacy, plus Alaska, Arizona and certain counties or townships in eight other states, including (only) three New York City boroughs – to get federal approval before changing any election laws. To obtain this preclearance, these jurisdictions may propose only changes that do not result in “retrogression,” a reduction in minority voters’ ability to elect their “preferred” candidates.
Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent. Indeed, the prohibition on retrogression effectively requires districting that assures that minority voters are the majority in some districts – an inherently race-conscious mandate. The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and it flies in the face of the 15th Amendment’s requirement that all voters be treated equally.
Read the whole thing, as well as Cato’s brief in Perry v. Perez and Roger Clegg’s article in the Cato Supreme Court Review on which one section of our brief heavily relied.
The Mystery of Khalid Aldawsari
Accused terror-plotter Khalid Aldawsari will not have access to classified materials detailing how and why he was monitored under the Foreign Intelligence Surveillance Act, a federal judge in Texas ruled earlier this month. Aldawsari had hoped to argue that the evidence against him derived from electronic surveillance and physical searches should be surpressed, either because the surveillance was improperly conducted or because the FISA warrants authorizing it were improperly obtained.
Aldawsari’s argument was straightforward: The broad powers available under FISA are only supposed to be used when the government is seeking “foreign intelligence” about an “agent of a foreign power.” Since Aldawsari is being accused of acting independently to plan an act of strictly domestic terrorism, only the usual tools available—under more stringent standards—for ordinary criminal investigations should have been available. Judge Sam Cummings rejected this argument following his own review of the classified evidence in closed chambers: Not only did the FBI have probable cause at the time of their investigation to believe Aldawsari was an “agent of a foreign power,” the judge found that Aldawsari did in fact meet FISA’s definition of an “agent of a foreign power.” The mystery is: How?
The natural answer is is the controversial “Lone Wolf” provision, allowing even a totally independent non-citizen who “engages in international terrorism or activities in preparation therefore” to be targeted under FISA as an “agent of a foreign power.” Aldawsari would seem to be a natural. But there are a few big problems. First and most importantly, the acting head of the Justice Department’s National Security Division testified after Aldawsari’s indictment that the provision had never been invoked. Second, it would at least be a legally disputable point whether Aldawsari’s alleged plot met the definition of international terrorism. Third, it would be unusual and arguably improper for the court to find not just that federal agents had probable cause to believe Aldawsari was engaged in international terrorism, but that he was engaged in international terrorism when this is precisely what the trial is supposed to prove. However damning the evidence, the court is not supposed to commit itself to Aldawsari’s guilt at this stage of the process: It would have been enough to rule that investigators had probable cause for this belief.
The Rise and Fall of DoJ’s ‘Gun-Show Sting’
Some legal stories weave together several distinct “Cato was right” themes. Among them is the news this week that the U.S. Department of Justice, conceding that its case has collapsed, has ended its prosecution of remaining defendants in the enormous “Africa Sting” case charging violations of the Foreign Corrupt Practices Act (FCPA) [Reuters, Law.com; my earlier post].
- DoJ is overzealously picking fights under the vague and misguided FCPA statute. I warned about that last month in this space and you can read more at my blog “Overlawyered.”
- Despite the Obama administration’s ostensible truce with Second Amendment supporters, anti-gun sentiment still runs high in some relevant Washington quarters. The Department of Justice chose to stage its biggest-ever prosecution by going after participants at a Las Vegas gun show, neatly advancing gun controllers’ longstanding portrayal of such shows as nests of lawbreaking. It now appears that, as juries see it, illegality at gun shows may not be quite as prevalent as some imagined.
- Law enforcement stings are rife with dangers for liberty. Cato’s criticism of stings goes way back and includes Gene Healy last year on the Amish raw-milk sting and longstanding coverage of the outrages generated by sting operations in the war on drugs. (On the latter, see a recent “This American Life” segment on high school pot stings in Florida, as related by Mark Frauenfelder.) Although a recent sting against Google for accepting unapproved drug ads involved relying on a career con man, it paid off with a stunning $500 million fine payable to the government, which virtually ensures it will be repeated against other defendants.
To stay abreast of tomorrow’s Department of Justice embarrassments, keep reading Cato today.
Courtland Milloy’s Self-Defense Quiz
Washington Post columnist Courtland Milloy mentions the new Cato study, Tough Targets, in his latest column.
The article begins with this self-defense quiz:
Say you’re sitting at a bus stop in the District, alone at night, when a suspicious person approaches. There have been more than 475 robberies in the city this year — a 70 percent increase over this time last year — and many involve the theft of electronic devices such as smartphones.
But your chances of being victimized are greatly reduced because:
a. Your smartphone has a disabling device that makes it worthless to robbers.
b. More police officers have been assigned to street patrol.
c. You have a gun.
The local police chief says the correct answer is (a) & (b). In the comment section, however, an astute reader notes that the correct answer is all of the above, including Milloy’s point (advanced at the conclusion of his article) that “risk avoidance” should be a part of a sensible personal safety plan.
A ‘Privacy Bill of Rights’: Second Verse, Same as the First
The White House announces a “privacy bill of rights” today. We went over this a year ago, when Senators Kerry (D-MA) and McCain (R-AZ) introduced their “privacy bill of rights.”
The post is called “The ‘Privacy Bill of Rights’ Is in the Bill of Rights,” and its admonitions apply equally well today:
It takes a lot of gall to put the moniker “Privacy Bill of Rights” on legislation that reduces liberty in the information economy while the Fourth Amendment remains tattered and threadbare. Nevermind “reasonable expectations”: the people’s right to be secure against unreasonable searches and seizures is worn down to the nub.
Senators Kerry and McCain [and now the White House] should look into the privacy consequences of the Internal Revenue Code. How is privacy going to fare under Obamacare? How is the Department of Homeland Security doing with its privacy efforts? What is an “administrative search”?
Mandates in Practice: the Flap over Contraception Coverage
First, President Obama requires church-affiliated employers to offer insurance that covers contraception. When that’s properly challenged as a violation of religious liberty, the administration offers a supposed compromise that essentially shifts the burden to the insurance industry: the church-affiliated employer is off the hook, but its insurer has to provide coverage—and can’t charge for it. That’s right: private companies must provide free insurance for services that Obama’s HHS secretary has repeatedly called a major financial burden.
Government by fiat: to solve a First Amendment religious freedom problem that the president himself created, he orders private companies to offer contraception coverage at zero premium.
Then we’re treated to the nonsensical and unsupported assertion that insurers will save money in the long run because they won’t have to pay for pregnancies that contraception would have prevented. In other words, executives running a multi-billion dollar industry—until they were enlightened by HHS bureaucrats—were too stupid to realize that providing free contraception to everybody costs less than pregnancies by individuals who (a) had childbirth coverage, but (b) not contraception coverage, and (c) would have used contraception, but (d) didn’t, because (e) they couldn’t afford to. Of course, that’s just baloney. What’s really at work, as Charles Krauthammer has aptly characterized it, is breathtaking arrogation of power by the feds: a Washington, D.C. takeover of our private health care system.
Broken Windows and the Unseen Crime Victims
Jack Goodwin was at home listening to a Lakers basketball game when he heard someone breaking one of his windows. He retrieved his handgun and then saw two intruders trying to gain entry at which point he fired, hitting one criminal. The other intruder ran away.
John Stossel and others have made the point that broken windows do not stimulate economic growth. Appearances can mislead—so we need to be mindful about where the money spent fixing the window would have been used if the windows had not been broken. Jack Goodwin’s broken windows provide us with a similar lesson: we need to consider what would have happened if this elderly man had no gun in his home because of a government policy overriding his option/choice.
The new Cato study, Tough Targets, describes scores of such instances where citizens were able to stop attempted murders, rapes, and robberies. And we are now tracking such cases on our new interactive map. Co-author Clayton Cramer recently had this piece in the Washington Times. More here and here.
A Day for Loving
Tonight HBO will broadcast “The Loving Story,” a documentary about Richard and Mildred Loving, the interracial couple whose marriage was banned by the state of Virginia and ultimately upheld by the Supreme Court in 1967.
Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:
Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court,
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.
Here’s how ABC News reported the case on June 12, 1967:
Some people, of course, see parallels between Virginia’s ban on interracial marriage and its current ban (along with many other states) on same-sex marriage. One of them is Robert A. Levy, chairman of the Cato Institute. Joined by John Podesta, with whom he co-chairs the advisory committee of the American Foundation for Equal Rights, the nonprofit group that brought the Perry case against California’s Proposition 8, he wrote in the Washington Post in 2010:
Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law….
Over more than two centuries, minorities in America have gradually experienced greater freedom and been subjected to fewer discriminatory laws. But that process unfolded with great difficulty.
As the country evolved, the meaning of one small word — “all” — has evolved as well. Our nation’s Founders reaffirmed in the Declaration of Independence the self-evident truth that “all Men are created equal,” and our Pledge of Allegiance concludes with the simple and definitive words “liberty and justice for all.” Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.
Thanks to the genius of our Framers, who separated power among three branches of government, our courts have been able to take the lead — standing up to enforce equal protection, as demanded by the Constitution — even when the executive and legislative branches, and often the public as well, were unwilling to confront wrongful discrimination.
But tonight you don’t have to worry about contemporary issues. Just enjoy “The Loving Story,” a story about two people who loved each other and whose marriage eventually led to an advance for the American principle of equal liberty under the law.
Guatemalan President Proposes Drug Legalization for Central America
It was going to happen sooner rather than later. Three years ago, a trio of former Latin American presidents denounced drug prohibition and called to “break the taboo” of discussing policy alternatives such as drug decriminalization. Then, a few months later, we had a former Mexican president calling for outright legalization. Late last year, a sitting Colombian president said that he would favor drug legalization “if the rest of the world does it too.” This weekend, a sitting Guatemalan president said he will propose drug legalization for Central America in an upcoming regional summit.
Otto Pérez Molina thus becomes the first sitting head of state to propose ending the war on drugs. Being a conservative former general who ran on a platform of fighting crime with “an iron fist,” Pérez Molina is an unlikely champion of sensible drug policy reform. As he described it, under his proposal “It wouldn’t be a crime to transport, to move drugs. It would all have to be regulated.” Pérez Molina says that with legalization, “you would get rid of money-laundering, smuggling, arms trafficking and the corruption that has crippled judges, police forces and entire government institutions, not only in our country but in the region.”
Central America is one of the hottest battlegrounds in Washington’s hemispheric war on drugs. Guatemala, along with neighboring Honduras, El Salvador and Belize, are among the most violent countries in the world. Most of the violence stems from turf wars between juvenile gangs, but Mexican drug cartels are increasingly escalating it as they extend their influence and operations in the region.
As Pérez Molina said, Central America’s biggest liability in its fight against organized crime is its institutional weakness. Judges, policemen, politicians, and soldiers are easily corrupted by cartels. Despite increasing their security budgets by 60% in the last five years, Central American countries spent approximately $4 billion in 2010 on security and justice. This amount dwarfs with the estimated $25-35 billion that Mexican cartels—who run the drug business in Central America—pocket every year.
The problem with Pérez Molina’s proposal is, of course, Washington. Central America is merely a transportation hub of cocaine from the Andean region to Mexico and then to the U.S. It is estimated that 90% of the cocaine consumed in the U.S. goes through Central America. Methamphetamine labs have been discovered in Guatemala in recent months, which might signal a displacement of production of synthetic drugs from Mexico to Central America.
Though a step forward, the proposal for one or all Central American countries to legalize drugs will hardly solve all or even the majority of problems associated with drug trafficking, especially if the rest of the Hemisphere sticks to prohibition.
Still, this doesn’t take away from the remarkable significance of having a sitting president arguing in favor of drug legalization. Maybe president Pérez Molina should have a chat soon with Colombia’s Juan Manuel Santos on this issue. Both could provide much needed leadership in an area where Latin America desperately needs it.
On Campaign Finance Hypocrisy
Today POLITICO Arena asks:
Is it rank hypocrisy for the nation’s most prominent critic of super PACs to reverse course and gave his blessing to them, or just common sense in the face of multi-million dollar Republican super PAC efforts aimed at ousting him from office?
My response:
There is an element of hypocrisy in Obama’s reversal since he and his party have long been the main proponents of campaign finance “reform” — and let’s remember that he also rejected public funding in his 2008 campaign, even as he and the Democrats have long championed such funding. But he’s also simply bowing to reality: for decades Congress has tried to restrict campaign contributions, but contributors always find a way to make their voices heard. And why not: with government today regulating virtually every aspect of life, you’d better be in the political game.
There are many “dirty little secrets” surrounding campaign finance “reform.” One is that incumbents love it because, far from “leveling the playing field,” it gives them a big advantage over challengers. Another is that proponents regularly confuse the issues: it was not Citizens United that enabled super PACs, for example, but Speech Now v. FEC. And a third is that elections in states like Virginia that have minimal regulations have no more corruption — the prevention of which is the rationale for restrictions — than states with draconian restrictions.
How much better it would be if the First Amendment were fully respected and people and organizations could give unlimited amounts directly to candidates and parties. Then candidates could no longer complain that they can’t control the messages “their” super PACs put out.
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