Tuesday, March 23, 2010

Criminal questioning of a border guard

Peter Watts, a science fiction writer and marine biologist who was arrested in December after an argument with a U.S. border guard while driving back to his home in Toronto, has been convicted by a Michigan jury of a felony. Watts faces up to two years in prison -- potentially three, if prosecutors succeed in tagging him as a habitual offender over a 19-year-old conviction in Canada.

On December 8, 2009, while returning home to Toronto after helping a friend move, Watts was stopped at the border crossing for a random search -- a warrantless intrusion common at the border, where constitutional protections for individual rights are minimal. Watts apparently stepped out of his vehicle to inquire as to the reason for the inspection. An argument ensued, during the course of which Watts was ordered back into his vehicle, beaten and pepper-sprayed -- not necessarily in that order.

Several media outlets have reported that Watts was convicted of assaulting a police officer, but that appears to be a misunderstanding; the Michigan statute under which he was charged is something of a grab-all legal bludgeon, saying "an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both." In fact, while Watts was convicted under that law, his actual offense revolved around failure to follow orders given by a Border Protection officer, with prosecutor Mary Kelly comparing his transgression to a refusal to take off shoes during security checks in airports.

The statute under which Watts was charged is clearly very broad, and would seem to potentially allow conviction for anything that might rub a law-enforcement officer the wrong way. As Watts wrote on his blog:
What constitutes “failure to comply with a lawful command” is open to interpretation. The Prosecution cited several moments within the melee which she claimed constituted “resisting”, but by her own admission I wasn’t charged with any of those things. I was charged only with resisting Beaudry, the guard I’d “choked”. My passenger of that day put the lie to that claim in short order, and the Prosecution wasn’t able to shake that.
Watts's real crime, he says, is that the law is so inflexible as to ban simple questions.
[T]he law doesn’t proscribe noncompliance “unless you’re dazed and confused from being hit in the face”. It simply proscribes noncompliance, period. And we all agree that in those few seconds between Beaudry’s command and the unleashing of his pepper spray, I just stood there asking what the problem was.
After the trial, one person claiming to be a juror responded to a news report about the case, saying:
As a member of the jury that convicted Mr. Watts today, I have a few comments to make. The jury's task was not to decide who we liked better. The job of the jury was to decide whether Mr. Watts "obstructed/resisted" the custom officials. Assault was not one of the charges. What it boiled down to was Mr. Watts did not follow the instructions of the customs agents. Period. He was not violent, he was not intimidating, he was not stopping them from searching his car. He did, however, refuse to follow the commands by his non compliance. He's not a bad man by any stretch of the imagination. The customs agents escalted the situation with sarcasm and miscommunication. Unfortunately, we were not asked to convict those agents with a crime, although, in my opinion, they did commit offenses against Mr. Watts. Two wrongs don't make a right, so we had to follow the instructions as set forth to us by the judge.
Despite these doubts about the wisdom of law-enforcement actions, the juror in the case didn't exercise the right of jury nullification -- that is, to refuse to convict a defendant who may have broken a law that jurors find offensive or wrongly applied. That leaves Watts with a felony conviction -- and facing possible prison time. Prosecutors are trying to use a 1991 conviction for obstructing a Guelph, Ontario, police officer asgrounds for tagging Watts as a "habitual offender" subject to enhanced sentencing.

Case details are available via a search at the St. Clair County Court Website.

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Friday, January 15, 2010

It's not just the feds; watch out for the neighborhood control freaks

There's been lots of justified concern in recent years that the federal government -- that crazy uncle in the attic -- has broken free of its restraints and is smashing the crockery and scaring the kids. Between George W. Bush's police state and Barack Obama's fascist economics (or is that Bush's fascism and Obama's police state?), the peril on the Potomac seems to represent an ever-growing threat to our liberty. But as the column I wrote earlier this week about a SWAT raid in small-town Arizona suggests, it's too easy to keep your eyes focused on D.C. and so miss the machinations of the control freaks in the local city hall.

The fact is that local governments have enormous power over the petty details of our day-to-day lives. Yes, the federal government may keep you awake at night fretting about wiretaps, bans, taxes and mandates, but it's local officials who get to decide whether you even have a bed in which to toss and turn. City councilmen, zoning and planning officials, building inspectors and the like get to determine whether you can move into a new home or open a business. A denied occupancy permit, a refused zoning variance or a hiked water fee can make all the difference in the world.

In a February 2010 article in Vanity Fair on the '70s disco scene, Ian Schrager of Studio 54 fame makes an interesting point about the far-reaching effects of petty regulations:
It wasn’t aids that made the nightclub business difficult. Government regulations did it in. Steve and I did our first nightclub [the Enchanted Garden, in Douglaston, Queens] for $27,000 and Studio 54 we did for $400,000. Now, with all the regulations, fire codes, sprinkler requirements, neighborhood issues, community planning boards … before you even put on the first coat of paint, you’re into it for over a million dollars. What it’s done is disenfranchise young people.
An April 2005 article in the North Bay Bohemian on the rise of underground restaurants in California made the same point:
"It costs $200,000 just for a permit to be allowed to buy water from the city!" exclaims [former underground restaurateur Michael] Hale. "You have to get tons of permits from various people. You've got to get a building permit, a permit if you want to remodel, you have to get licenses for beer and wine, and you have to get certified by the Health Board."
And, of course, the power of eminent domain is largely exercised at the local level, where bureaucrats and politicians decide who will be pushed off their own property to make way for some government-favored use.

Those rules can be a nightmare to navigate -- or an insurmountable hurdle -- if they are properly applied. But local government is a personal business. People know each other, develop friendships and enmities, and personal feelings can easily spill over into the application and enforcement of local rules. David Carl, the subject of my last column, insists that the SWAT raid on his Cottonwood, Arizona, business, over which he is filing a lawsuit, began as a dispute over signage regulations and an occupancy permit that turned personal. Indeed, a review of city records shows that one zoning commissioner displayed a continuing interest in the progress of the case.

Does that  prove that local rules were abusively applied? No. But it's suggestive. And even the fear of such abuse can cause people to mind their manners when dealing with local officials.

I remember when my wife and I, and our partners, went shopping for a general contractor to construct a building for my wife's medical practice. We received a lot of advice on who to use and who to avoid -- not just based on their personal merits, but also on their relations with local officials. We were warned that good relations could ease the way for permits and make inspections a breeze, while bad feelings could sabotage the whole project.

Given how matter-of-factly that advice was given -- and how often I've heard of similar advice given to people elsewhere -- that offers an important insight into the destructive power posed by local officials and their rules.

Local government is certainly closer to the people. But closer isn't always better. Often, we need to maintain a healthy distance from the people who want to wield coercive power over our lives. And as our experience with the federal government has demonstrated, even 3,000 miles and more isn't always enough.

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Thursday, November 19, 2009

Chance at a real trial for Cory Maye

One of the more controversial prisoners behind the bars of any prison in the United States -- Cory Maye -- is getting a new trial. After eight years in a Mississippi prison for killing a police officer, during which time his case has raised questions about paramilitary police tactics, self defense, the reliability of informants, racial bias and junk science, the Court of Appeals of the State of Mississippi ruled that Maye should have been tried in his own county, as he requested, not in a neighboring county. The defendant will, at long last, have another chance to assert his innocence -- this time with a chorus of supporters, including prominent attorneys and journalists.

In Mississippi, everybody agrees that police had a warrant to raid the apartment adjacent to Maye's in a Prentiss, Mississippi, duplex, on a tip alleging drug sales, on the night of December 26, 2001. During the course of the raid, officers forced their way into Maye's apartment for which they also had a warrant, apparently believing it was connected to the targeted unit. After police broke down the door, Officer Ron Jones was fatally shot by Cory Maye.

That's pretty much the extent of the agreement. Police claim they announced themselves and that Maye looked out and saw them, so knew they were police when they pounded on the door and then forced their way inside. Maye says he was sleeping in a chair and awoke to the sounds of loud banging, so retreated to his daughter's bedroom where he could defend himself and the girl as unknown assailants entered the home.
Upon searching Maye's home, police found only a small amount of marijuana, raising questions as to why a man with a clean record would knowingly shoot  a police officer.

More questions were raised later, including the prominent role played in the trial by Dr. Steven Hayne, a controversial medical examiner whose competence was was widely derided by forensic pathologists outside Mississippi -- and who was ultimately fired after loud and public complaints that he had railroaded innocent defendants (although he may be slithering his way back into lucrative work courtesy of legal shenanigans).

There were also questions about the warrant in the case, which was based on the word of a confidential informant vouched for by Officer Ron Jones, who left no notes and was obviously unable to fill in the gaps himself after the fact. Maye's name wasn't mentioned in the warrant and Jones apparently didn't verify the information he received before the raid was staged.

These issues didn't prove critical to the appeals court, however. The court focused on the refusal of the trial judge to transfer the case back to majority-black Jefferson Davis County, where the shooting took place, and instead hold it in a majority white county despite Maye's desire to be tried near the scene of the raid. The trial had originally been moved at the request of Maye's defense counsel -- an attorney with no capital murder experience -- who asked to reverse the request after being warned by local lawyers that a fair trial was impossible in the new venue.

In fact, Maye's original death sentence was commuted to life in prison because of concerns about  his attorney's competence.

For the majority, Chief Judge Leslie D. King wrote:
Finding that the trial court abused its discretion in not allowing Maye to exercise the constitutional right to be tried in the county where the offense occurred, the judgment of the trial court is reversed, and this case remanded for a new trial.
Maye's case has been championed by libertarian journalist Radley Balko, who wrote a major article about the case for Reason in 2006. Balko also played a major role in exposing Dr. Steven Hayne. Balko's efforts, as well as those of volunteer attorneys and other journalists, will give Maye a new chance to make his case, and to address concerns raised since the first trial.


Tuesday, November 3, 2009

Court reduces itself to rubber-stamp approval for torture

Fretting that allowing a lawsuit to proceed could interfere with national security concerns and damage U.S. relations with other countries, a majority of judges on the United States Court of Appeals for the Second Circuit ruled that Maher Arar, a Syrian-Canadian, cannot sue the United States after American agents kidnapped him and sent him to Syria to be tortured. The decision suggests that the U.S. government policy of "extraordinary rendition" -- sending terrorism suspects overseas to face torture and interrogation -- may have formally become a safe haven for government officials who want to act beyond the reach of the Constitution or judicial review.

Maher Arar, a Canadian citizen born in Syria, was seized by U.S. officials in September 2002 while changing planes at New York's JFK airport en route from Zurich to Montreal. A telecommunications engineer educated at McGill University, Arar had been tentatively fingered by Canadian authorities as having distant connections to people involved in terrorism. That was enough for U.S. officials, who used the controversial "extraordinary rendition" program, which was implemented in the mid-1990s, to send Arar to Syria, where he was tortured and interrogated for ten months. As the ACLU puts it:
In the words of former CIA agent Robert Baer: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again -- you send them to Egypt."
After surviving extended beatings, deprivation and confinement to a three-foot-by-six-foot cell, Arar was eventually returned home. The Canadian government, seemingly motivated by equal parts embarrassment and horror, cleared him of any wrongdoing and awarded him nearly $10 million in compensation for the bad information its agents supplied that helped trigger his ordeal.

Arar also filed suit against the U.S. government for the crimes committed against him by its agents. But the U.S. government has repeatedly claimed that the people it sends to their fates at the hands of third-world secret policemen have no rights under U.S. law, and that the courts have no jurisdiction. By a 7-4 margin, the Second Circuit Court of Appeals agreed. For the majority, Chief Judge Dennis Jacobs wrote (PDF):
A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns.
He added:
Absent clear congressional authorization, the judicial review of extraordinary rendition would offend the separation of powers and inhibit this country’s foreign policy.
Jacobs also voiced concern that allowing the lawsuit to proceed would require revealing sensitive intelligence information -- a nod to the state secrets privilege the Bush and Obama administrations have invoked in an effort to put many government abuses beyond the reach of adjudication and remedy.

Ultimately, the Secoond Circuit decison in the case of Maher Arar not only denies justice to an abused man -- it arguably reduces the court system to rubber-stamp approval for any horror committed by the U.S. government, so long as the magic words "national security" are uttered along the way.


Monday, October 26, 2009

Arizona hits the asset forfeiture lottery

The Arizona Department of Public Safety, which includes the Highway Patrol, is making much fuss about two roadside stops last week that resulted in the seizure of over $150,000 in cash that was being transported in the vehicles. The money was taken on suspicion that it was the proceeds of criminal activity, and the two drivers have been booked on money laundering charges related to the as yet unidentified crimes.

That's right: unidentified crimes. Oh yes, it's a fair bet that the money -- $49,000 in a hidden compartment and $104,000 in a shoe box -- came from some underground trade, with drugs as the safest guess. But there was no way for police to know that for sure when they pulled the vehicles over for "speeding and a lane change violation" in one case and for "a following distance traffic violation." The police claim vague "indicators of criminal activity" as excuses for the subsequent searches of the vehicles that revealed the money, but the charges on money laundering alone suggest that the indicators didn't actually constitute evidence.

So the drivers are being charged with laundering money gained from criminal activities to be named at a later date, and their cash was taken on suspicion of being connected to those same mysterious activities.

Again, it will be no surprise to anybody if the cash does turn out to be drug money, but it should also be no surprise if it turns out to be perfectly legitimate cash. Police claim that their spidey senses are nearly infallible in such matters, but more than a few people over the years have had their money stolen by law-enforcement authorities who just wouldn't or couldn't believe that anybody would want to possess large sums of cash.
As long ago as 1995, then-Rep. Henry Hyde made a personal cause of exposing the confiscation of cash by police from innocent people. He emphasized the case of Willie Jones, a Nashville landscaper, who found it easier to do business in cash when purchasing supplies for his business -- and lost nearly $10,000 for his troubles. Unfortunately, Jones was only one victim among many of asset forfeiture laws -- weird vestiges of medieval legal theory that allow the authorities to seize and prosecute things under legal standards much less stringent than those required to prove cases against people.

Despite the attention of Hyde, the Cato Institute and the ACLU, and subsequent congressional hearings into asset forfeiture abuses, the situation hasn't really improved. Some communities -- such as Tehana and Jim Wells County, both of Texas, and Lamar County, Georgia, have become notorious for stopping passers-through and grabbing anything of value. Those who object are threatened with -- you guessed it -- money laundering charges. As of last year, The Jim Wells County Sheriffs's Department was generating one-third of its budget from roadside muggings.

Often, police will point to positive results from drug-sniffing dogs as indicators that seized cash is the proceeds of illegal activity (canine hits could well be the "indicators of criminal activity" cited by the DPS, since the arrests were made by a canine officer), but that's like tossing darts at an elephant considering that a whopping 90% of all U.S. cash has cocaine traces. One forensic scientist who has commented on the matter warns that the traces are high enough to cause false drug test results on people who handle large amounts of cash.
Asking dogs to sniff a bundle of the green stuff itself is like shooting fish in a barrel.

Odds are that the Arizona Department of Public Safety is right and the cash officers seized last week comes from drug transactions (and leave aside, for the moment, my strong belief that the government has no business criminalizing voluntary transactions among adults of any sort). But the DPS doesn't actually know that, it's just guessing. If the Arizona Highway Patrol didn't actually rob innocent drivers last week, it, like so many other law enforcement agencies around the country, certainly has in the past -- and it will likely do so again in the future.

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Wednesday, October 14, 2009

I pledge allegiance -- for now, provided certain conditions are met

Already this month, the Pledge of Allegiance has made news headlines multiple times. The U.S. Supreme Court refused to hear the appeal of a Florida high school student who was punished for failing to swear loyalty to the national symbol, a federal judge declined to strip the words "under God" from the pledge in a New Hampshire school district, and a ten-year-old Arkansas boy was punished not for his principled refusal to recite the pledge, but for telling a pushy, uber-patriotic teacher to "jump off a bridge."It seems that America's own aging oath of fealty has a hankering for the spotlight. But do even the rebels at the root of the news stories understand why the Pledge of Allegiance is so troubling?

The Supreme Court case involved a Florida law that, since 1942, has required all school students to recite the pledge unless excused by their parents. In 2005, Cameron Frazier declined to participate in the patriotic chorus at Boynton Beach High School because of his objection to government policies and was booted from class for his trouble. He sued (PDF) and initially won, but a federal appeals court ruled that the First Amendment rights in the case belonged to parents, not children, so Frazier had no legal legs to stand on. The Supreme Court has decided to let matters rest there.

Unlike Frazier, the plaintiffs in the New Hampshire case didn't object to the whole pledge -- which is optional where they live -- but to the phrase "under God," which was added to the original 1892 text in 1954. As atheists and agnostics, they don't want officially sanctioned recitals to include religious material. The judge's dismissal of the case is now being appealed.

Will Phillips, the Arkansas ten-year-old, refused to say the pledge out of solidarity with gays and lesbians who, he believes, don't enjoy equal rights in the U.S. Unusually for somebody his age, he had the backbone to stand his ground -- and talk back -- when castigated by a teacher offended by his alleged disloyalty.

In both the Florida and Arkansas cases, the resisting students stood on principle to refuse to say the pledge. They objected to policies or perceived flaws in the country and decided, as a matter of conscience, that they couldn't ... well ... pledge allegiance.

But what if you like what the folks currently in power are doing, think that everything is going swell and approve of the wording of the oath in question? Is it OK to pledge allegiance then?

While we don't often consider what the Pledge of Allegiance actually means, it contains pretty strong words. The definition of "allegiance" in The Free Dictionary is:

1. Loyalty or the obligation of loyalty, as to a nation, sovereign, or cause.

2. The obligations of a vassal to a lord.

Even if we gloss over the feudal implications of definition two, the first definition is awfully absolute. "Loyalty or the obligation of loyalty."

Do free people really make open-ended promises of loyalty?

It's worth knowing that the author of the pledge was no particular fan of America's (imperfect) tradition of individual liberty. Francis Bellamy was a Christian socialist and a fan of a now quaint-seeming, but then popular movement to reorganize the country along quasi-military, top-down lines in which everybody would be drafted into industrial armies. The goal was sketched out in his cousin Edward Bellamy's once best-selling novel, Looking Backward (a work saved from a certain naive creepiness only by its age).

The pledge was Bellamy's small way of nudging the country away from individualism, toward authoritarian nationalism. His ideal people would pledge loyalty, and wouldn't be free.

After all, free people support governments, institutions and symbols only so long as those things respect their rights and have something positive to offer. Their support is purely conditional. When governments, institutions and symbols displease them, free people trade them in for something they hope will be better, like Americans did in 1776.

The founders weren't really "Pledge of Allegiance" sort of people.

Implicitly, people like Cameron Frazier and Will Phillips seem to understand that point, even if they don't explicitly reject the idea of an oath of loyalty. After all, when you stop reciting a pledge when policies change, it's clear that you've never really made a pledge at all, since your allegiance is conditional.

And that's the way it should be.

Those stubborn kids who refuse to stand to recite the pledge with the the rest of the class may not agree on the reasons for their refusal, but by hedging their bets on their political loyalty, they all prove themselves to be better advocates of liberty than the drones mouthing words they don't understand.

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Thursday, October 1, 2009

Zero tolerance gets detention

Last year, a ten-year-old boy in North Carolina was suspended from school because he had a broken pencil sharpener in his possession. The tiny sliver of metal that shaves wood away from the graphite was deemed to be the equivalent of a cavalry saber, putting the school in, as the local paper put it, "the precarious position between the district's zero tolerance policy against having weapons at school and common sense." Arizona's Savana Redding had to go to the U.S. Supreme Court to find justice after she was strip-searched at her school on suspicion of possessing ibuprofen -- the common and legal painkiller that was, nevertheless, forbidden from school grounds. That such incidents are no rarity is clear from a Web search on "zero tolerance" and "schools" and by legislation that just took effect in Texas returning a modicum of rationality to the treatment of students found in possession of pocket knives, pain relievers and other items forbidden by insanely restrictive policies.

Horror stories related to zero-tolerance policies have grabbed headlines for as long as the rigid policies have existed. That could have been predicted by anybody with half a brain. If a policy draws unforgiving lines when it comes to "violence," "drugs" and "weapons," then it's inevitable that children will be expelled and even arrested and jailed for writing gory stories, toting penknives and sharing aspirin.

As the outrage, ridicule and lawsuits in response to zero-tolerance, even the legislators and educators who'd implemented the policies to absolve themselves of the responsibility for difficult decisions began to back away from what they had wrought. Even the laziest school administrator must recoil at the response to nine- and ten-year olds hauled away in handcuffs for drawing violent pictures with crayons, if not at the reality of the incidents themselves.

So, finally, we get legislation intended to alleviate the worst abuses of zero-tolerance policies.

Perhaps not coincidentally, Texas's "law relating to consideration of mitigating factors in determining appropriate disciplinary action to be taken against a public school student" was signed by the governor just days after the U.S. Supreme Court ruled that the strip search of Savana Redding was unconstitutional. The law eliminates the unforgiving nature inherent in prevailing rules by requiring that educators consider four factors when considering what should be done about infractions of school rules. Specifically, the law mandates:

consideration will be given, as a factor in each decision concerning suspension, removal to a disciplinary alternative education program, expulsion, or placement in a juvenile justice alternative education program, regardless of whether the decision concerns a mandatory or discretionary action, to:

(A) self-defense;
(B) intent or lack of intent at the time the student engaged in the conduct;
(C) a student's disciplinary history; or
(D) a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct;

Strictly speaking, nothing about the law specifically ends the madness of children penalized for pocket knives, drawings and painkillers, but it does strip school officials of the ability to claim that their hands are tied by black-letter rules. From now on, the responsibility for each school disciplinary decision in Texas can be laid at the feet of a human being, not passed off to a piece of paper or a few paragraphs on a Website.

Still, Texas Zero Tolerance, a group formed in response to the horror stories, warns that "What the bill does not do, however, is extend due process to the accused children and their parents. ... Until parents are allowed in the principal’s office before punishment has been decided, we will continue to see travesties of justice."

Also, the group wants to see a formal appeals process in place for challenging disciplinary decisions (some of them pretty devastating, such as expulsion) up the bureaucratic food chain.

Until that happens, laws like the one taking effect in Texas will be only an incomplete first step toward keeping public schools as viable contenders in an era when educational alternatives chosen by families, including charter schools, homeschooling and private schools, are becoming increasingly available and attractive.

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Friday, September 18, 2009

Rep. Ron Paul on liberty and the need for a revived anti-war movement

Rep. Ron Paul in an interview by Time magazine. You have to love a guy who can coherently link a denunciation of the income tax to a denunciation of conscription.

By the way, Alexander Cockburn has made the same (accurate) point about how the anti-war movement has neutered itself now that Bush is out of office.

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Wednesday, September 16, 2009

It's 1969, all over again

Under siege by Atlanta's gay and lesbian community, as well as by supporters of social tolerance, the Georgia city's police department is scrambling to justify a violent raid on a popular bar that caters to a leather clientele. In a city that is not known for having solved all its problems with crimes against people and property, Atlanta Police Chief Richard Pennington argues that the raid on the Atlanta Eagle was justified because ... well ... there was consensual sex among adults going on in the establishment.

Seriously. That's the police excuse for a raid by more than 20 officers, during which, says the Atlanta Journal-Constitution, "62 patrons were ordered facedown on the bar’s floor, some for more than an hour. The customers were searched illegally and some were taunted with anti-gay slurs by some of the officers..."

Co-owner Robert Kelley told CBS, "The only thing they'd tell us is we need to sit down and shut the (expletive) up, and if we asked any questions, they'd bash us with a bar stool."

All this because of allegations of open sex on the premises, as well as the presence of illicit intoxicants.

Even when it comes to pursuing a full-court press against victimless "crimes," the police walked away empty-handed. Eight bar employees were ultimately arrested -- for permit infractions.

But even if there was sex on the premises, the police have raised no allegations that the conduct was anything but consensual, in an enclosed and seemingly safe environment. As for drugs ... I've written often enough about the pointlessness of trying to dictate to people just what intoxicants they may and may not use, as well as the individual rights violations inherent in any attempt to enforce such rules. The report of sixty-two people verbally abused while handcuffed face-down on the ground -- without the police even making arrests for violating those laws against sex and drugs -- amply illustrates that point.

Honestly, why should the police care how people are enjoying themselves in a place and with companions of their own choosing? And why should the police expend such resources on this raid in a city where the murder and nonnegligent manslaughter rate edged up, according to the Bureau of Justice Statistics, from 20.9 per 100,000 people in 2005, to 22.6 in 2006 to 25.9 in 2007? Admittedly, that's a vast improvement over the rate of a decade ago -- so are all crime statistics in Atlanta -- but it would seem the police still have plenty of real offenses against people and property to occupy their attention.

In the end, it's none of the government's business what consenting adults do with each other, on their own property or in an establishment owned by somebody who welcomes them.

Ironically, it was a raid much like this one, at the Stonewall Inn in New York City in 1969, that launched the modern gay rights movement. At the Stonewall Inn, gays and lesbians fought back, defeated the police and claimed a little respect for the right to be left alone.

With the Atlanta Eagle raid following so closely on the police assault on the Rainbow Lounge in Fort Worth, Texas, maybe it's time for another Stonewall-style push-back.

Or maybe the authorities could just learn, finally, to mind their own business and tend to more important concerns.

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Wednesday, September 2, 2009

The Hamptons just got a little more interesting

The inhabitants of two well-heeled towns on New York's Long Island are reportedly shocked to discover that brothels have been operating in residential neighborhoods -- and enjoying a booming business in otherwise trying economic times. Given the large number of politicians who maintain vacation houses in the area, you'd think the good people of Westhampton and Southampton would be accustomed to their neighbors peddling favors from their homes. But if they really want to minimize the disruption caused by underground prostitution, they should learn a lesson already taken to heart elsewhere, and eliminate laws against the trade.

Prostitution, for example, is legal in much of Nevada. The ability to work in legal -- and heavily regulated -- brothels has cut down the need for sex workers to operate under the radar by selling their services in venues that might not always be perceived as appropriate (such as residential neighborhoods).

But Nevada's solution isn't ideal. That heavy regulation forces sex workers into brothels, limiting their independence and their negotiating power. Given that an imbalance of power is already an issue (the prostitutes in the Hamptons brothels kept only $15 of the $40 charge for each trick), something a little more liberating may be in order.

Which brings us to New Zealand. In 2003, that nation decriminalized prostitution, essentially returning the sex trade to legal, free-market status. The government enforces laws against force and fraud as it does for other above-ground industries, but otherwise generally stays out of the way.

Last year, a government reviewed the impact of the reform -- and liked what it saw. According to the conclusion of the Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003.

The PRA has been in force for five years. During that time, the sex industry has not increased in size, and many of the social evils predicted by some who opposed the decriminalisation of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.

In contrast with conditions where prostitution is illegal, only 4.3% of female sex workers (and half as many male prostitutes) in New Zealand have been coerced into the business. Employment conditions have dramatically improved now that sex workers have access to legal redress for mistreatment by employers and customers. They can also go to work on their own, without need of the "protection" of an established pimp.

Most importantly, the trade is now above-board, and doesn't need to pop up in odd locations, like rental houses in the Hamptons, in an effort to avoid the authorities.

Laws against prostitution don't do much but make life difficult for sex workers and the occasional unlucky customer -- just ask Eliot Spitzer, the last governor of New York, how deterred he felt by the laws he had enforced as attorney general. They also drive the trade into inconvenient locations through efforts to evade the police (and let's not forget the corrupting effect on public officials who take money or sex to look the other way).

So if residents of Westhampton, Southampton and points beyond want to get prostitutes out of their neighborhood, their best bet is to get rid of the laws against the sex trade.

As for getting politicians out of their neighborhood ... That's a tougher challenge.

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Tuesday, September 1, 2009

Will Barry soar to the tops of the pops?

Well, OK, perhaps it's a little early to ponder President Barack Obama's likely assessment by historians of the future. But it's certainly not too early to point out that he's well on his way to high regard according to the usual blood-and-brutality standards set by most scholars -- but that he's vying for a very low rank according to an intriguing rating system that grades presidents according to the service they do in maintaining peace, prosperity and liberty.

Earlier this year, for Presidents Day, C-Span released the most recent scorecard judging the nation's former chief executives on their leadership. These rankings have become a semi-regular event, during which historians are polled on their subjective assessments of the relative merits of the presidents. Not surpisingly, they reveal more about historians than they do about the men they rate. Tellingly, the top of the list almost always features the same names. Abraham Lincoln, George Washington and Franklin D. Roosevelt featured prominently this year, as they do in almost all such exercises.

I say almost all, because there are a few dissident voices playing this game. The latest such contrarian ratings come from Ivan Eland, Director of the Center on Peace and Liberty at the Independent Institute, and author of Recarving Rushmore: Ranking the Presidents on Peace, Prosperity, and Liberty.

It's not fair to say that Eland's rankings turn the usual results upside down -- but they come pretty close. At the top of Eland's list is John Tyler, who comes in at number 35 on the C-Span list. Pulling the worst rank on Eland's list is Woodrow Wilson, who finished in ninth place for C-Span.

How could the results be so wildly at odds?

Easy -- Eland uses very different criteria than those used by most historians when ranking the presidents.

As the title of his book suggests, Eland rates the presidents according to their ability to preserve and defend peace, prosperity and liberty. Specifically, as Eland puts it, "this analysis gives presidents credit for avoiding wars and conducting only necessary wars of self-defense." In terms of prosperity, Eland judges presidents not just by prevailing conditions while they were in office, but for the effects of their policies after they left -- presidents who artificially pumped up the economy and left a shambles for their successors get dinged. When it comes to liberty, the author looks at deeds more than words. "Presidents often claim that they are preserving liberty while, at the same time, they are taking actions to subvert it. Only genuine acts promoting economic freedom (deregulation) and political liberty will be counted in the plus column in this analysis."

Since bad presidents have frequently done their worst damage while expanding their authority at the expense of the other branches of government -- and in defiance of constitutional strictures -- Eland also looks at the extent to which they resisted the urge to illegitimately expand the power of the presidency to the near-monarchical clout it wields today.

C-Span, on the other hand, asked historians to rate presidents (PDF) on "Public Persuasion," "Crisis Leadership," "Economic Management," "Moral Authority," "International Relations," "Administrative Skills," "Relations with Congress," "Vision/Setting An Agenda," "Pursued Equal Justice for All," and "Performance Within the Context of His Times."

But it was considered inappropriate for presidents to appeal directly to the public until the twentieth century, automatically hobbling earlier officials in the rankings. "Crisis Leadership" and "Economic Management" inherently put at a disadvantage presidents who manage to avert crises and who believe they have no business managing the economy at all.

Most telling is that, of the five top-rated presidents in the C-Span list -- Abraham Lincoln, George Washington, FDR, Theodore Roosevelt and Harry Truman -- three presided over wars (and Theodore Roosevelt was overtly bellicose -- only George Washington seemed to have any taste for peace, and even he suppressed a tax revolt with troops and seized Indian lands). While the C-Span scholars celebrate these presidents' wartime leadership, Eland holds them to account for being unable or unwilling to avert bloody conflict.

Of those presidents, Lincoln and FDR get severely down-graded by Eland for civil liberties violations directly related to their war efforts, showing that much of what makes a president great or poor goes hand-in-hand.

Overall, most historians clearly prefer those presidents who leave the biggest mark on history -- in terms of blood, brutality and expensive monuments to themselves.

But the presidents who serve us best, as Eland points out, are those who quietly pass through office by using diplomacy, self-restraint and established channels to prevent crises, avert conflict, preserve our liberty and otherwise give us every reason to tend to our own affairs without worrying about political goings-on.

Ultimately, Tyler ranks so highly in Eland's list because of quiet actions like ending the Second Seminole War, slashing the size of the army by one-third, peacefully settling a boundary dispute with Canada, declining to send troops to suppress a minor rebellion in Rhode Island, maintaining sound money and controlling federal spending -- all while battling his own activist Whig party. That's not splashy stuff -- but it's the necessary basis for allowing people to raise families, build businesses and plan for the future.

Woodrow Wilson, on the other hand, ranked last on Eland's list for pushing America into an unnecessary war, criminalizing dissent, jailing political opponents and seizing private businesses. Those actions won him high rank among the C-Span historians.

So, how will President Barack Obama fare in the future? It's early yet, but based on his record, so far, of massive spending, continuing military adventures in Iraq and Afghanistan, expanding the role of government in the economy, and building on the authority and secrecy of the presidency, it's safe to predict that most historians will view him with fondness. They like the imperial presidency. He's unlikely to place very high on the Peace, Prosperity and Liberty index, however.

Of course, there's room for agreement even among scholars using very different criteria. Both Eland and C-Span ranked the last president -- George W. Bush -- at number 36, very near the bottom.

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Monday, August 24, 2009

A painful investigation

Memos penned under the late, unlamented Bush administration authorizing the use of torture against people suspected of (but not convicted of) engaging in terrorism are making the rounds -- and political waves. The U.S. Department of Justice's Office of Professional Responsibility has recommended the government revisit past decisions against prosecuting Central Intelligence Agency personnel for their conduct during the interrogation of detainees. In response, Attorney General Eric Holder approved a preliminary review in the matter to determine if federal law was violated. The review, which will be led by Assistant United States Attorney John Durham, may lead to a full review, which may lead to prosecution.

So what's all the fuss about? How did those memos trigger such turmoil? Well, you can dig through the documents yourself, which include such highlights as the following fine words sent by Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA, on May 10, 2005:

In Techniques, we concluded that the individual authorized' use of several specific interrogation techniques, subject to a variety of limitations and safeguards, would not violate the statute when employed in the interrogation of a specific member of al Qaeda, though we concluded that at least in certiain respects two of the techniques presented substantial questions under sections 2340-2340A. The techniques that we analyzed were dietary manipulation, nudity, the attention grasp, walling, the facial hold, the facial slap or insult sIap, the abdominal slap, cramped confinement, wall standing, stress positions, water dousing, extended sleep deprivation, and the "waterboard."

Or, if you want the short version, you can listen to excerpts read by narrators, including Oliver Stone, in the brief video below, which was prepared by the American Civil Liberties Union.


Monday, August 3, 2009

Immigration raids and the Fourth Amendment don't mix so well

Immigration and Customs Enforcement agents made headlines last summer when one of their teams raided, without a warrant, a home in Yuma, Arizona, unconnected to illegal immigrants and owned by an agent with a sister agency. Now, a report penned by experts in law and law enforcement says that ICE regularly ignores constitutional guarantees when conducting its raids.

The raid on the Slaughter home may have raised eyebrows across the country, but such conduct has become all too common in parts of the United States. In the Southwest, drivers have become accustomed to roadblocks along the highways manned by Border Patrol. Even some police officers, such as those in Arizona represented by the Mesa Police Association, have grown weary of the endless targeting of illegal immigrants, and have pushed back against proposals to turn every encounter between cop and pedestrian into an immigration status check.

In fact, Mesa's Chief of Police George Gascon is one of the authors of Constitution on Ice: A Report on Immigration Home Raid Operations, a report from the Benjamin Cardozo Law School's Immigration Justice Clinic. According to that report:

Through two Freedom of Information Act lawsuits, the authors of this report obtained significant samples of ICE arrest records from home raid operations in New York and New Jersey. Analysis of these records, together with other publicly available documents, reveals an established pattern of misconduct by ICE agents in the New York and New Jersey Field Offices. Further, the evidence suggests that such pattern may be a widespread national phenomenon reaching beyond these local offices. The pattern of misconduct involves:

• ICE agents illegally entering homes without legal authority – for example, physically pushing or breaking their way into private residences.

• ICE agents illegally seizing non-target individuals during home raid operations – for example, seizing innocent people in their bedrooms without any basis.

• ICE agents illegally searching homes without legal authority – for example, breaking down locked doors inside homes.

• ICE agents illegally seizing individuals based solely on racial or ethnic appearance or on limited English proficiency.

That sounds an awful lot like what the Slaughters went through. According to Jimmy Slaughter's affidavit, attached to his complaint against the Department of Homeland Security, Immigration and Customs Enforcement, Supervisor Neil Baker and the seven agents who raided his home:

On July 24th 2008 at approximately 1730 hrs I was at home with my wife when the doorbell rang," Slaughter wrote in an affidavit included in the eight-page lawsuit. "I opened the door and noticed approximately 7 uniformed Ice agents with vests and guns standing at my door. I could only see 3 unmarked cars in front of my home.

I said what's up fellas? Not having a clue as to what was happening. The lead agent stated that, 'We have received information that Guadalupe Uolla is residing at the residence.' I opened the screen door to look at the paperwork and five agents entered my house.

My wife asked me what was happening, thinking this was a joke. The agents then told my wife to stand in the center of our living room; we were in the middle of folding laundry during my day off. Not once did anyone say they had a warrant.

Note that Slaughter was able to end the raid by demonstrating his own Border Patrol credentials. His status also allowed him access to Baker, who supervised the raiders and who he chewed out over the phone. But even with his privileged status and access, Slaughter still ended up seeking redress through the courts.

Most encounters with ICE don't end so "well." Earlier this year, the Associated Press reported that immigration agents have sometimes illegally seized and deported citizens during the course of their raids.

ICE teams have apparently made a habit of visiting homes under the authority only of administrative warrants issued by their own agency. These administrative documents don't meet the standards set by the Fourth Amendment's guarantee that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Cardozo report details:

According to ICE’s own Detention and Deportation Officer’s Field Manual, "Warrants of Deportation and Removal are administrative rather than criminal, and do not grant the authority to breach doors. Thus informed consent must be obtained from the occupant of the residence prior to entering.”

As the well-documented Slaughter raid illustrates, that's a provision they regularly ignore.

How often do ICE agents barge into homes without legal authority? That seems to vary from place to place. The Cardozo report looked closely at raids in New York and New Jersey, and found that informed consent was not first obtained 24% of the time in the Garden State -- and a whopping 86% of the time on Long Island. The situation has been bad enough that in New York, Nassau County police pulled out of one 2007 operation with ICE because of “serious allegations of misconduct and malfeasance.”

The Fourth Amendment was added to the Constitution over 200 years ago by people who had suffered, in their lifetime, government agents who forced their way into private homes and businesses at will. It seems that whatever protection that amendment may once have provided is pretty well gone.

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Friday, July 31, 2009

Oh, so you mean that whole 'peace candidate' thing was BS?

Anti-war protesters and other activists who hoped that the passing of the old Bush administration meant an end to domestic surveillance of peaceful political activity may have to give up their illusions. Democracy Now reports on the exposure of a government spy in the midst of an anti-war group in Olympia, Washington.

From a public records request, Brendan Maslauskas Dunn, a member of the Industrial Workers of the World discovered that a trusted activist with Students for a Democratic Society and Port Militarization Resistance, John Jacob, was feeding vast amounts of information to the government.

According to Dunn, when confronted:

[H]e admitted to several things. He admitted that, yes, he did in fact spy on us. He did in fact infiltrate us. He admitted that he did pass on information to an intelligence network, which, as you mentioned earlier, was composed of dozens of law enforcement agencies, ranging from municipal to county to state to regional, and several federal agencies, including Immigration Customs Enforcement, Joint Terrorism Task Force, FBI, Homeland Security, the Army in Fort Lewis.

Towery, who actually works for the Force Protection Service at the Fort Lewis military base, was co-administrator of the group's listserv, so had access to internal communications and membership lists. And, according to him, he wasn't the only government informant infiltrated into these political organizations.

See an excerpt of the Democracy Now broadcast below.

The full report, including a transcript, is available here.

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Thursday, July 23, 2009

Libertarian journalists barred from Canada

The libertarian journalists of The Motorhome Diaries were detained at the Canadian border and denied entry into the Great White North. Apparently, the abuse they sustained at the hands of authorities in Jones County, Mississippi was cited as a reason to bar them from the country. That, and the "heinous propaganda" they were carrying.

Says Xaq Fixx:

A box of literature from the Alliance of the Libertarian Left was taken, and a copy of Crispin Sartwell’s “Against the State” was left out on the counter. The RV was ransacked but thankfully not to the point it was in Jones County, Mississippi. Their laptops are now in the possession of the state agents, and those agents are reading about fr33 Agents, The Free State Project, and Jason & Pete’s former employer. One agent has accused them of ’spreading misinformation.’

The guys have been told that the state agents are looking for “Pornography or Heinous Propaganda.” When asked for a definition of “Heinous Propaganda” or the applicable statute they were told it was available online, but they don’t have computers or Internet access.

For those keeping score, the Canadian encounter was less violent than the Mississippi encounter, since it involved neither pepper spray nor confinement in a cell.

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Friday, July 17, 2009

Just don't hurt anybody

We all agree that civil liberties are good things, right? But we don't all agree about specific liberties and their defenders. Some people snipe at sexual rights and the ACLU, others at self-defense rights and the NRA ... We may believe in liberty, but we don't seem to agree on what it is. So, what is liberty? The answer, is that it's anything peaceful, or, put another way, anything done among consenting adults.

Some people will answer: But, you have no right to smoke grass, own guns, have gay sex, travel without showing ID, or open a business without a license if the government says otherwise! The law tells us what our civil liberties are, and the government, elected by a majority of the people, makes the law.

To put it bluntly: Screw the government, screw the law and screw the majority.

If you want to marry somebody of the same sex, toast the festivities with marijuana bought at an unlicensed bar, and celebrate with a machinegun shoot (well ... I suggest you reverse the order of the shoot and the toast), it ain't nobody's business if you do.

In fact, Ain't Nobody's Business If You Do is the title of a wonderful book written by Peter McWilliams and published in 1996. In the book, the full text of which is now available online, McWilliams wrote, "You should be allowed to do whatever you want with your own person and property, as long as you don't physically harm the person or property of a nonconsenting other."

McWilliams didn't invent this idea. It's an old one, perhaps most closely associated with the philosopher John Stuart Mill, who wrote:

[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

In the modern context, McWilliams elaborated:

Laws against consensual activities create a society of fear, hatred, bigotry, oppression, and conformity; a culture opposed to personal expression, diversity, freedom, choice, and growth. The prosecution of consensual crimes "trickles down" into ostracizing, humiliating, and scorning people who do things that are not quite against the law but probably should be. "They're different; therefore, they're bad" seems to be the motto for a large segment of our society. We are addicted to normalcy; even if it means we must lop off significant portions of ourselves, we must conform.

There's no need to accept the validity of all these arguments; the validity of any one is sufficient reason to wipe away all the laws against consensual activities.

"A culture opposed to personal expression, diversity, freedom, choice and growth"? Isn't that a bit strong?

Not really. You see, McWilliams died in 2000. A cancer and AIDS patient himself, he was arrested while helping another writer conduct research for a book on growing marijuana for medical purposes. His mother's house was held as collateral for the bond that secured his freedom while awaiting sentencing, and the chief prosecutor in the case threatened to seize the home if McWilliams was found with even a trace of the marijuana he used to control the severe nausea caused by his medication.

Unable to control his nausea, McWilliams choked to death on his own vomit.

Some people would make excuses for the prosecutor in the case. He was just doing his job according to the law, after all.

But a law that would deny a man medicine and cause him to choke to death is evil, and so are those who voluntarily help to enforce such laws.

We make a big deal about the democratic nature of our political system, but there's nothing about 50% plus one that could sanctify laws and actions like those that led to the death of Peter McWilliams. If we recognize that you have the right to do peaceful things -- that is to engage in trade, or to love, or to consume -- by yourself and with other consenting adults, then it doesn't matter if the people intruding into your life are lone wolves or a majority of the population. They're wrong to intrude and they're doing evil by sticking their noses where those noses aren't welcome.

Because it ain't nobody's business if you do.

Unfortunately, governments and our neighbors have grown accustomed to interfering in what isn't their business. Occasionally, they give a hat tip to the philosophical tradition represented by Mill and company by arguing that, if you're allowed to smoke grass or own a gun or operate a storefront without a license, others really are harmed by your subsequent (alleged) lower productivity at work, or the possibility that you'll go postal, or the vague potential for you defraud customers in a way that could allegedly be prevented by an official piece of paper.

This stretches the idea of "harm to others" so far out of shape as to be unrecognizable -- except as a dishonest intellectual dodge. Accepting the argument that what you might do, or what could reduce your utility to society, is any business of the government, leaves absolutely nothing beyond the reach of nosey busybodies with official titles.

It also, incidentally, reduces you to a cog in the machine.

Laws that interfere in your right "to do whatever you want with your own person and property, as long as you don't physically harm the person or property of a nonconsenting other" go too far. They should be defied and sabotaged. Governments that insist on passing such laws are illegitimate and should be dumped. And majorities that put such governments in power? Well, they're just wrong, and should be told to take a hike.

Defending liberty isn't about playing by the rules. It's about judging whether the rules, and the people who enforce them, are worth respecting.

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Tuesday, June 30, 2009

New boss, same as the old boss, chapter 26

President Barack Obama is actively considering issuing an executive order authorizing the continued, indefinite detention of terrorism suspects, without trial, according to the Washington Post and Pro Publica. The news is widely being treated as a shocking about-face for a president who has criticized his predecessor's harsh tactics in dealing with alleged terrorists. But for anybody paying attention, this is just one more step along a path the president has has already traveled, with indefinite detention hinted at in a May speech and even championed by the Obama administration in legal papers filed in March.

According to the Washington Post report:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

Indefinite detention, which flies in the face of Obama's campaign-trail civil libertarian attacks on the Bush administration, could apply to as many as half of the 229 detainees currently held at Guantanamo Bay. And, while it's a sharp departure from the position he took while courting voters, it's very clearly a logical outcome of the direction in which he's been moving since taking office.

On May 21, President Obama gave a speech on national security in which he addressed the issue of detention. He took care to criticize Bush-era detention policies, but then allowed that he might do the same thing -- though only with congressional approval.

[T]here remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Implementing indefinite detention via executive order would abandon this earlier commitment to work with Congress and bring the new president's position even closer to that of former President George W. Bush.

But even the May speech can be seen as a follow-up to a March 13 filing with the federal district court for the District of Columbia. In that document, the administration reasserted the Bush-era argument for holding detainees.

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

An accompanying statement explained that the Obama administration had tweaked the legal rationale for indefinite detention -- but still planned to maintain that policy.

[T]he Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant."

Taken all together, it's clear that the Obama administration has been moving toward a policy of indefinite detention of detainees under the unilateral authority of the president -- a position much like that taken by the Bush administration -- since before the moving boxes were unpacked in the White House.


Thursday, June 25, 2009

Supreme Court says: Hey! Teacher! Leave those kids alone

A strip search of a high school student based on a tenuous tip that she possessed a legal painkiller -- forbidden under school rules -- violated the constitutional rights of that student and is unjustified under law. However, the school officials who ordered and conducted the search cannot be held legally liable for their actions. That's the decision of the United States Supreme Court in a much-anticipated decision (PDF) that further defines the Fourth Amendment protections available to public school students, and stands as a victory for Savana Redding, the student who waged a long battle after being humiliated by officials in Safford, Arizona.

In 2003, at the time of the search in question, Savana Redding was a 13-year-old eighth-grader at Safford Middle School in the small town of Safford, Arizona. School officials got a tenuous tip that Savana had given a friend some ibuprofen -- the stuff in Advil and Motrin. That was against school rules, so the girl was detained by Assistant Principal Kerry Wilson. She was subjected to a strip search by two female school employees. The search turned up nothing.

But the Redding family wasn't done. They fought the search through the courts, finally winning at the Ninth Circuit Court of Appeals (PDF) which ruled "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil."

Today's Supreme Court decision, written by retiring Justice David Souter, and sparking notable dissent to its Fourth Amendment holdings only from Justice Clarence Thomas, says in part:

[T]he content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

The court goes on to say:

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to thestudents from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

But while an intrusive search in search of a vague threat based on tentative suspicions fails to meet constitutional muster, the officials in this specific case can't be held liable for their transgressions. That's because of legal uncertainty over the extent of school officials' liability for constitutional missteps, providing officials, up until now, anyway, with conflicting guidance about just how far they can go. Because of that gray area, says the court, Wilson and company are entitled to qualified immunity for their actions.

That leaves Savana Redding with no clear path to seek redress for her abuse by school officials -- other, that is, than the knowledge that such searches are clearly off-limits in the future. Savana's fight has strengthened legal protections for students following in her footsteps.

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Tuesday, June 16, 2009

Forensic science -- it ain't CSI

William Dillon spent 27 years behind bars for a crime he didn't commit. Wilton Dedge spent a similar stretch behind bars before finally being exonerated. Juan Ramos was sentenced to death before being freed from prison over a crime he didn't commit. The three men are linked not just by their innocence, but by the role played in their cases by dog handler John Preston, a one-time Pennsylvania state trooper, and his amazingly talented dog, Harass II. Preston was only one of many "scientific" experts later exposed as a fraud, some of whose victims may still wait to be revealed.

Scott Maxwell of the Orlando Sentinel has the details regarding Preston and the wreckage he left behind. But the fact that Preston and his "wonder dog" were so relied upon by prosecutors and courts until exposed in the media and humiliated by one judge demonstrates just how much suspension of disbelief (or outright dishonesty) is behind the acceptance of "forensic science" that too often turns out to be either poorly applied -- or even pure hocum.

Reason magazine's Radley Balko has made justified waves in recent years by exposing the nonsense disguised as medicine peddled by Dr. Michael West, a dentist who offered scientifically implausible evidence of guilt (in several cases, of defendants later proven innocent), based on his exclusive bite-mark "technique."

Balko was also largely responsible for (hopefully) ending the career of the notorious Dr. Steven Hayne, a medical examiner without credentials who seemed to customize his testimony to meet the needs of prosecutors.

But it's not just corrupt individuals who deserve skepticial consideration -- so do whole areas of forensic "science." Drug testing, for instance, is a highly subjective "science" that has a lot to do with the skill -- and honesty -- of technicians. It's not at all uncommon for ordinary soap to test positive for illegal intoxicants.

A report on the state of forensic medicine for the National Academies of Science concedes that "The fact is that many forensic tests -- such as those used to infer the source of toolmarks or bite marks -- have never been exposed to stringent scientific scrutiny."

Overall, says the report:

[I]n some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.

"Faulty" science has to include the evidence of dogs, which have become so ubiquitous in recent years because of their supposed ability to connect defendants to crime scenes, or to simply detect forbidden substances.

But, despite the legendary power of their noses, canine-based evidence has to be taken with a grain of salt. For starters, dogs' "testimony" is highly dependent on the word of their handlers. In fact, there's no standard way for a dog to tell us that something has been detected. Some dogs just sit, others jump up and bark -- interpretation is in the eye of the handler.

Dogs, also, are notoriously easy to manipulate, since they develop close bonds with their handlers. For a 2004 report on the unreliability of detection dogs, Auburn University professor Larry Myers, a leading expert on canine detection programs, told CBS News, “They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for.”

Through improperly training his dogs, or simply lying about their alerts, it was easy for John Preston to manufacture evidence of the guilt of innocent men.

But fallibility can be as dangerous as fraud. The U.S. Court of Appeals for the Eighth Circuit ruled in 2007 that canine testimony was acceptable in a case where the dog was only 54% accurate.

How many years of prison time are we willing to let ride on a 54% accuracy rate?

None of this is to say that forensic science is worthless. Properly used and understood it's absolutely necessary. After all, William Dillon and Wilton Dedge were freed of the shackles placed on them by bogus canine testimony because of the more rigorous standards set by DNA evidence.

But presenting fallible and sometimes fraudulent evidence as if it's beyond question runs the risk of discrediting good science along with the bad. The damage done by the John Prestons of the world can only be undone if we treat science as an imperfect part of an imperfect world -- not as the magic so-often peddled by charlatans.

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Friday, June 12, 2009

So, reading rights is a 'bad' idea?

Security statists have their knickers in knots today over revelations that some terror detainees are being mirandized -- that is, read their rights. Armchair interrogators are upset that suspects held behind bars are being told that they have right to counsel and to remain silent, and accusing the Obama administration of being weak in the pursuit of terrorists. Except ... not only is this good news, the policy apparently began under the Bush administration.

In the pages of the Weekly Standard, which broke the story, Steven Hayes quotes former CIA Director George Tenet warning that information extracted from Khalid Sheikh Mohammad would have remained unknown had the detainee been aware of his rights.

"If Tenet is right," adds Hayes, "it's a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan."

But ... the Washington Post had FBI agents informing detainees of their rights at Guantanamo Bay well before the current president took office. In a report dated February 12, 2008, the Post said:

Officials said most of the detainees talked to FBI and military interrogators, some for days, others for months, while one or two rebuffed them. The men were read rights similar to a standard U.S. Miranda warning, and officials designed the program to get to the information the CIA already had gleaned by using waterboarding, which simulates drowning, and other techniques such as sleep deprivation, forced standing and the use of extreme temperatures.

Why, oh why, would the FBI mirandize detainees and gently question them about information that had already been tortured out of them? Oh, that's right. Because courts and the intelligence community don't have a lot of confidence in information extracted through unpleasant means, and will often refuse to accept it.

Prosecutors and top administration officials essentially wanted to cleanse the information so that it could be used in court, a process that federal prosecutors typically follow in U.S. criminal cases with investigative problems or botched interrogations. Officials wanted to go into court without any doubts about the viability of their evidence, and they had serious reservations about the reliability of what the CIA had obtained for intelligence purposes.

Whatever depths it was willing to sink to, the Bush administration was aware that much of the world would doubt the credibility of data "volunteered" by men who were dangling from the ceiling in shackles or gasping from simulated drowning.

The Obama administration seems to be taking much the same tack.

"There has been no policy change and no blanket instruction issued for FBI agents to Mirandize detainees overseas," Justice Department spokesman Matthew Miller said. "While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."

The fact of the matter is, protections for rights, due process, limits on interrogation tactics and decent treatment of prisoners aren't just about being nice. They're about maintaining the credibility of a legal system so that people have confidence in the information it produces and the judgments it reaches.

It's also about making sure that you arean't wasting your time interrogating detainees who may have been scooped up through accident or malice. Without procedural safeguards and counsel, it may take you years to discover, for examples, that the Uighurs you're holding ended up in captivity because they were randomly nabbed and sold by bounty hunters.

Due process and protection of rights are humane, yes, but even if you care nothing about that, you have to recognize that decent treatment has a very practical value. Without such safeguards, legal systems and information-gathering efforts become brutal, time-wasting jokes.


Wednesday, May 27, 2009

More reason to keep your mouth shut around the police

Sure you have a right to legal counsel, says the Supreme Court. But if you're not up on your rights and feeling, perhaps, a little chatty amidst the press of glaring law-enforcement officers, the police are free to question you out of your lawyer's presence if you don't know enough to keep your mouth shut. That's the gist of the U.S. Supreme Court's ruling in Montejo v. Louisiana (PDF), which requires defendants to know enough about the law to invoke their right to counsel (and zip their lips) before they can enjoy its protection.

The decision came in a Louisiana case in which Jesse Montejo was arrested in connection with the robbery and murder of Lewis Ferrari. Montejo waived his Miranda rights and submitted to an interrogation, before ultimately being brought before the court where an attorney was appointed to represent him.

After counsel was appointed, police detectives invited Montejo to join them on a search for the murder weapon. In the course of the trip, he wrote a letter of apology to Ferrari's widow, implicating himself in the murder. "Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence."

Montejo's attorney had every reason to be upset, since the letter ended up as a central piece of evidence at trial, at the the conclusion of which the defendant was found guilty and sentenced to death.

How could the police take Montejo for a joy ride and use the old "write a letter of apology; it'll make you feel better" ploy while he had legal representation?

Well, it's because of a peculiarity of state law.

Under the rule adopted by the Louisiana SupremeCourt, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the Jackson protections are interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations providedthat they first obtain an otherwise valid waiver by the defendant of his right to have counsel present.

So, in Louisiana, you can be represented without enjoying the protections of representation unless you say the magic words.

To his credit, Justice Scalia, writing for the majority, finds the Louisiana rule a bit loosey-goosey.

To the extent that the Louisiana Supreme Court’s rule also permits a defendant to trigger Jackson through the“acceptance” of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right tochoose his counsel, United States v. Gonzalez-Lopez, 548 U. S. 140, 151 (2006), so it is hard to imagine what his “acceptance” would look like, beyond the passive silence that Montejo exhibited.

If allowed to stand, Scalia concedes, the Louisiana rule would give defendants in some states far fewer rights than defendants in other states under the standard set by Jackson in 1986, which established that police can't question a defendant who has a lawyer or has asked for one unless the attorney is present.

Scalia and company then go about resolving the disparity by overruling Jackson. Now police can question you out of the presence of your attorney.

The decision actually doesn't leave Montejo without hope, because there's apparently some evidence that he did request his attorney before being taken on a joyride with the detectives -- and was ignored. He can still apeal on that basis.

But that very contention brings up the reason why Jackson was decided the way it was some 20-plus years ago. As Scakia himself writes, "Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights."

But there's a likelihood here that police detectives heard a defendant assert his rights -- and then bulldozed through that assertion to make their case. If Montejo saw the cops simply dismiss his request for a lawyer, why wouldn't he feel intimidated and prone to tell the cops what they want to hear?

Even if we allow that Montejo is probably as guilty as sin, and worthy of little in the way of sympathy, the protections the court just stripped from him can shield innocent people too.

Professor James Duane of Regent University School of Law and Officer George Bruch of the Virginia Beach Police Department have got a lot of mileage out of a pair of classroom videos they made urging people to not talk to the police. That's because even the innocent can tie themselves in legal knots -- or incriminate themselves in inadvertent crimes -- with their big mouths in the absence of legal counsel.

But keeping your mouth shut takes a little wisdom, and a little courage, when the cops go to work on you. Now it's going to be that much harder to avoid self-incrimination -- not just for Montejo, but for all of us.

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Friday, May 22, 2009

Detention just in case is OK if it's Obama's idea (cuz he's so dreamy)

It's hard to improve on Rachel Maddow's commentary about President Barack Obama's new, improved idea for indefinitely holding terrorism suspects who haven't necessarily done anything, to make sure they commit no dastardly deeds in the future. Yes, it really does sound like the Department of Precrime.

Olbermann wishes he was this sharp.

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