The Snowdens of Yesteryear

I've told this story before.

It was back when I was Legal Director of the ACLU of Ohio, and I was to be debating some hot-shot law school professor from some hot-shot law school and about the USA Patriot Act and other post 9/11 measures that involved ceding liberty for the illusion of greater safety.  And, not incidentally, we weren't to know the details, because if they told us, they'd have to kill us.

National security, don't you know.

I'd done this gig before.  I talk about ephemeral benefits and how all these increased powers to protect us against terrorists are actually being used to catch drug dealers and on-line gamblers while invading the privacy of ordinary folks and how the government justifies all this by scaring the public with hypothetical stories of the horrors that could have been prevented and maybe were (but who knows because if they told us the truth it would have given away the store to terrorists) so it was all worth it.
And then he'd talk about protecting America and how we have to give up a bit of privacy for security in this new age.

So we flipped a metaphorical coin, and he went first.  And completely changed the script.

He didn't talk about safety or security or trade offs we had to make because 9/11 changed everything.  Instead, he said that the Pres (it was Shrub at the time, but that was irrelevant to the position he was staking out) had, per the Constitution, plenary unreviewable power to do whatever he thought best in regard to national security and defense.  We had no right to know what he was doing.  Congress had no oversight authority and any it attempted to exercise was unconstitutional.  Ditto the courts.  If we didn't like what he was doing (although we weren't to know what it was) our remedy was to vote him out of office at the next election and replace him with someone else who was to act in secret but whose acts (again unknown to us) we preferred.

Really, that's what he said.  Law degrees, government experience, law review articles, and all.

Which brings me to Edward Snowden and NSA and government secrecy and whistleblowers and finally to His Barakness who said,

I welcome this debate.  And I think it's healthy for our democracy.  I think it's a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.  And I think it's interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren't very worried about it when there was a Republican President.  I think that's good that we're having this discussion.

Which is, of course, vacuous bullshit of the highest order.  It might even be true except that it's almost wholly content free.  And where there is content, it's misleading.

See, there are these secret surveillance programs where they get everyone's metadata from Verizon and would never never get more and you can be sure because they said that everyone in Congress knows about it and knew about it and they all think it's hunky-dory including those who've been trying to complain about without revealing anything and those who despite knowing all about it are wholly ignorant of it.  And there's strict oversight by the courts which simply say, "how high?" when told to jump.  And it's all a secret from the American people because if we know, then so do the terrorists and if they know Verizon makes their data available to the feds then they'll switch their iPhones to AT&T and that'll make the whole thing worthless.

And ditto for the Prism thing and reading your e-mails and text messages and watching the youtube of your kid rolling around on the carpet in front of the TV or striking out at little league or performing in the school assembly or giving instructions on how to turn sudafed into speed.

And so while thousands urge President O to pardon Snowden as a national hero and others urge his assassination as a traitor (drone strike on Hong Kong, anyone?) DOJ plans simply to turn him into the next Bradley Manning and put him in prison forever - if they can just get their hands on him.  Because he opened the door to the candy store.

But the debate?  He welcomes it.  It's "healthy for our democracy."  Because, you know, the public should get to weigh in on and evaluate the trade-offs we're making between safety and security.  EXCEPT, OF COURSE, THEY HAVE NO RIGHT TO KNOW ANY OF THIS AND HAVE NO SAY.  (Or should that last have been in microscopic print like the fact that one side effect of the prescription drug advertised on TV is that it might turn you into a jellyfish - or a psychopathic killer?)

Over at Popehat, Clark wrote "Edward Snowden, F____ yeah!" which Matt Brown echoed.  Scott Greenfield thinks Snowden's mostly a distraction from the real issue - our lost privacy, a position aligned with Mark Bennett's call for action.

So what’s the solu­tion for those of us who are not will­ing to sell lib­erty cheaply?

We could take the Fried­man approach and say “this far but, golly gee, no far­ther please” in the assump­tion that by giv­ing up some free­dom we can pre­serve the rest. But this approach is doomed to fail­ure because even if we suc­ceed in fight­ing the last war, some­thing else will come along that jus­ti­fies, in the minds of the booboisie, less free­dom. Mean­while, the Fried­man approach trains the 99% to give up essen­tial free­dom for tem­po­rary safety, teaches the gov­ern­ment that we will not push back, and so has­tens liberty’s even­tual demise.

Or we could say “this will not stand” and teach the booboisie to push back. We might never get more than 50% on the side of lib­erty in the face of fear, but we do not need a major­ity to prevail.

What we do need, though, is to know that there's an issue.  Which is where Snowden comes in.  
I don't know, maybe he did jeopardize national security and a nuclear weapon will flatten Sioux City, Iowa because the FBI and NSA didn't find out that some guy with an area code in Saskatchwan has been texting to someone in  Portales, New Mexico.  Frankly, it doesn't seem likely.  I mean what he really did is confirm what the more cynical of us have understood for some time.

What they can, they will.
What power they have, they will abuse.
 

Justice Roberts, with whom I rarely find myself in agreement (and would he stop with that smirky smile, already), got this much exactly right in U.S. v. Stevens.

But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. 

What's true of the First is equally true of the others.  But it's true only if we push back.  And we can only push back effectively if we know where the front lines are.  Which is what Snowden and the Guardian have just told us.  Maybe.  Or maybe their the middle lines they've revealed.  Hell, it might even be the backfield.  But it's a starting point.

Let the debate Obama falsely claims he wants, begin.  And then throw it aside, because we don't need to talk about it.  We need to rise up and say "NO MORE."

Or we can join with Yossarian and ask

Where are the Snowdens of yesteryear?

If You Can't Do the Time . . . Stand Back from the Closing Doors

Flavio Uzhca stood too close to the door on a Number 7 subway train last March so police forcibly took him off the train, demanded ID, then arrested him.  

It turns out that it's a crime to stand too near the doors on a subway in New York.  Or to put your feet on a seat.  Or to take up even part of a second seat.

Some things are just illegal and you get a citation and go on your way.  That can happen for a subway riding violation.  But they can arrest you for it, too.  And, according to an article by Joseph Goldstein and Christine Haughney in the Times, they do just that.

Ask William D. Peppers. 

William D. Peppers recalled how empty the subway car was. It was not yet 4 a.m. on a Friday, so most of New York was still asleep, but he was already late for his job at a Bronx bakery. As his train passed through Midtown Manhattan, Mr. Peppers stretched out, closed his eyes and nodded off.
Then came the tap. It was a police officer.
Mr. Peppers had put his feet up on a subway seat, and that, the officer informed him, was a crime — one that in his case would lead to his arrest. He spent 12 hours in jail before he saw a judge, and was released after pleading guilty.

Or ask Michael Weaver.

Michael Weaver, 20, a construction worker, was heading home to Harlem after having Thanksgiving dinner with his girlfriend’s family. As he rode an empty E train, he said, he nodded off and his right knee and thigh leaned on the empty seat next to him. Just before 1 a.m., he said, he was jolted awake by a police officer who accused him of taking up more than one seat. Mr. Weaver said the officer called his unit and asserted that Mr. Weaver had a prior violation.
“He said that it was big enough to get locked up,” Mr. Weaver said.
After he spent the night in a cell, a judge offered to dismiss the case if he stayed out of trouble for six months.

But, hey. You never know.

Paul J. Browne, the New York Police Department’s chief spokesman, said enforcement of subway regulations had made the transit system much safer.
“One of the reasons that crime on the subways has plummeted from almost 50 crimes a day in 1990 to only 7 now is because the N.Y.P.D. enforces violations large and small, often encountering armed or wanted felons engaged in relatively minor offenses, like putting their feet up, smoking on a platform, walking or riding between cars, or fare beating,” Mr. Browne said.

It's a second cousin of the broken windows theory of crime control:  Take care of the petty stuff and the quality of life will be better and there'll be less tolerance for the major stuff. 

Another branch of the same tree calls for rousting every black or Hispanic because you'll nab a few bad guys along with the hundreds of thousands of innocent folk.

And we might as well grope granny and the kids at the airport while we're at it.

And let's put GPS monitors in everyone's car.  Or maybe implant them at birth.  Hey, you never know.  You can't be too careful.

We can, after all, never be too safe.

Today he's rest your foot on the empty seat in front of you.  Tomorrow he's shooting up a Safeway.

Besides, the cops have a quota.

One police officer who works in the transit system acknowledged that there were a lot of “petty arrests,” but he said that officers were under pressure from supervisors to “bring in one collar” each month.

In 2011, the cops issued more than 6,000 citations for these social faux pas.  Sigh.

But they actually arrested another 1,600.

Arrested.

Booked.

Taken to the pokey.

Hauled 'em before a judge.

Because what the hell.

Harvey Silverglate explained that we all commit at least Three Felonies a Day.  And Scott Greenfield, via Radley Balko, pointed out the other day that we begin 2012 with 40,000 new laws we can violate.

It's called overcriminalization.  And it doesn't make us safer.  And it sure doesn't make us more free.

But it gives the cops something to do besides munching donuts solving real crimes - or preventing them.

And really, it's important to keep the subways free from terrorists like Flavio, with whom I started this little rant.

See Flavio was a serious danger to public safety, and the cops caught him red handed.  With a bomb  Standing stood too close to the door.

He'll tell you about it if you can find him, which might be tricky since he's been disappeared to Ecuador.

Mr. Uzhca, a line chef from Ecuador, was returning home from his gym before 8 p.m. on March 10. When he stood at the door of a packed train, an officer escorted him off and asked to see identification, he said in an e-mail. Mr. Uzhca said he showed identification from Ecuador. By the time he was arraigned, the authorities learned that an immigration judge had issued an order in 2002 for his deportation.
Mr. Uzhca called his bosses to tell them he would not be at work that day. He never did return.

I feel safer already.

Bet you do too.

Blawgs are made by fools like me.  But only cops can keep the subway free from terrorists leaning against the doors.

Honesty: A Concept

But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution. 

That's from Scott Shane's "News Analysis" in the New York Times on the killing of Anwar Al-Awlaki and Samir Khan.  Really, you can quibble about the language, but you can't argue with the fact, at least not if you're going to be even a little bit honest.

You can argue, of course, about whether it was legal anyway.  Shane again:

Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed that the killings were legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right deeply opposed to such targeted killings of Americans. 

Yeah, those wimpy leftists and rightists.  How dare they wrap themselves in the Constitution when we're talking about America and American lives.  Dick Cheney understood that obeying the Constitution shouldn't get in the way of defending the country.   Obama gets that, too.  It's unavoidable.  We have to abandon our way of life in order to preserve it.  (Cheney and Obama would both probably disagree with the characterization.  Tough.)

Of course there are lawyers.  There's always a trusted advisor or law professor who'll argue that the Constitution gives the Pres plenary power to do whatever he wants or thinks he needs to.

But they're wrong.  As Nixon was.

Even if they can find judges, even if they can find Five Who Decide on the Supreme Court.  The Court decided Dred Scott.  The Court decided Plessy.  The Court decided Korematsu. The Court decided Kelo.  The Court decided whatever case you think it got wrong.  As Justice Jackson said, concurring in Brown v. Allen,

We are not final because we are infallible, but we are infallible only because we are final.

So here's a couple of things that are true:

• Killing Al-Awlaki and Khan, even if they deserved it and even if it were OK for the government to kill individuals (this is not a post about the death penalty), was unconstitutional.
• Killing Al-Awlaki and Khan, even if it was wise (I've got my views on that, you may have yours), was unconstitutional.
• Killing Al-Awlaki and Khan, even if the President's advisers and lawyers said it was legally permissible, was unconstitutional.
• Killing Al-Awlaki, even if the Supreme Court should someday say otherwise, was unconstitutional.

Nixon was wrong.  It's not legal just because the President does it.

Sometimes, of course, it may be worth breaking the law.  Sometimes it may even be right.  Hell, signing the Declaration of Independence was an act of treason.

But the signers of the Declaration didn't pretend that they were obeying British law.  They owned up to what they were doing. 

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

So here's my humble suggestion.

Mr. President:  If you're going to engage in extrajudicial killing, and clearly you are, don't pretend that the law authorizes it.  Here's how your speech should begin.

Today, as yesterday and the day before that and the day before that, on my orders and authorization, the military and the Department of Homeland Security and the Justice Department and the Treasury Department,and the State Department and probably the fucking Postmaster General violated the Constitution.  They'll all do it again tomorrow.  And next month.

Then you can list all the ways.

And you can try to explain why.

My guess, and I dearly hope my guess is wrong, is that most people would think it was fine.  

Because, as Scott Greenfield would say with more than a touch of irony, you did it for the children.

Show Them the Money - UPDATED

Pretend for just a minute that you're a state that favors strict punishment for crimes and where along with prisons that are overcrowded there are local jails holding plenty of folks.

Pretend also, that this hypothetical state has no budget surplus.  The money it has goes to education, to medicaid, to maintaining the infrastructure, to supporting the state's historical commission and its dozens of agencies and commissions, to the upkeep of the Governor's mansion and the state capital, to the cops and the prosecutors and the public defenders and the courts and the jails and the prisons, to all the big and little stuff the government does by choice and by necessity.  And, of course, there's never really enough money because there's a drive to cut taxes and because the economy is probably in the toilet and too many people are out of work.

Pretend, that is, that you are one of the 50 states in the union.  Any one, really.

And in that pretend, you're looking for ways to make a buck.  And an obvious place to look is at the accused and convicted because, really, who gives a shit about them?  And sure, maybe 70% of them are indigent, but they're criminals so they must have a little stashed away.  And anyhow, they're criminals (even if they're found not guilty, you know they're criminals), so fuck 'em.

If you're Ohio, you charge the indigent accused, the ones who are entitled to a free lawyer, $25 because free doesn't have to mean without cost.

If you're Arizona, you charge the families and friends of the imprisoned $25 to find out whether they'll be allowed to visit.

If you're more and more states and localities, you charge inmates for the cost of food and shelter.  They'd pay for food and lodging if they were staying in a hotel.  How is staying in jail or prison different?  (As Elizabeth Barrett Browning said, "Let me count the ways.")  Actually, if you're California you have some jails with luxury accommodations available specially for those who can foot the bill.

You charge court costs and fees and the cost of court-appointed counsel.

If you're Florida, you try to charge Casey Anthony for the cost of searching for the baby the jury acquitted her of killing.  (After all, she was found guilty of lying so she should pay for everything - some $500,000 worth.)

And now, it seems, if you're New Mexico, you charge $1,122 for a forced body-cavity search that turned up nothing.

Perhaps I'm not being fair.  It's the hospital that performed the search that's billed the victim.  It's New Mexico that's forced her to file a lawsuit to make the state pick up the tab.

Oh, sure.  They had "credible information from a reliable source" that she was hiding as much as an ounce of heroin.  Except she wasn't.  Instead, she was hiding nothing. Nada. Zip.

They didn't get to arrest her.

They didn't get to book her.

They didn't get to make mug shots or have her do a perp walk or splash her name all over TV and the newspapers.

And really, it's a surprise because she's been wily enough to have no criminal record.  Because, er, well, maybe because she's not a criminal.

But she does have the humiliation.

And a bill for $1,122.

And no apology.

But of course, times are tough all over. 

UPDATE
According to the Las Cruces Sun-News, the Metro Narcotics Agency, which is the agency that obtained the search warrant and forced Ms. namenotpublic to undergo the senseless cavity search, paid the $1122 tab.
There's no suggestion in the article (or anywhere else I see) that the Agency apologized to Ms. ________________ or offered to compensate her for humiliation, aggravation, lost time, lost dignity, abuse, and pain.
Still, after her lawyer (the agency didn't offer to pay her legal bill, either) threatened to sue, they paid up.  That is, of course, something.  Which is better than nothing.  But probably not enough.

H/t on the update to Volokh

Sore Loser

Here in the blogosphere (and in the subset that's the criminal defense blawgosphere, which is a truly ugly word), we talk a lot about abuses of power by law enforcement types.  You know, the shootings and beatings and arrests of folks for complaining about a speed trap or for having an untucked shirt or for using a tape recorder or for not being drunk or just because in Maricopa County or . . . you get the idea.

We talk about those outrages (which is what they are) because they're dramatic and big and often have video.

But there's the small stuff, too.  It's often petty, but it's real.  And like the big stuff (but mostly absent the violence for its own sake), it's an outgrowth of entitlement and petulance and power.

And so there's Sheriff Raymond Hamrick of Cleveland County, North Carolina.

Hamrick's in his last days as Sheriff.  Three weeks from today, December 6, Alan Norman takes over.

In the meantime, though, Norman collects unemployment insurance.  

See, Norman made the mistake of winning the primary. That's the primary in which Hamrick received a stunning 2 percent (yes, that's right, 2 percent) of the vote.  And then Norman won the general election.

Now, Hamrick doesn't say he fired Norman for being more popular.  (And drawing two percent of the vote in your own party's primary suggests that Hamrick is seriously lacking in the popularity department.)  Hamrick says he fired Norman for using Department cars to interview prospective employees of the new administration.  

Because, after all, hiring the staff isn't part of the job.  Oh, wait, yes it is.

Let Them Eat Cake

I'm from the government and I'm here to help you.

Ronald Reagan liked to say those were the scariest words in the language.  I've floated the idea that the scariest words are not those, but these.

We won't abuse the power.

When the government brought criminal charges against Robert Stevens for marketing videos he'd made showing dog fighting, it used a law designed to prohibit crush videos, films designed to satisfy the sexual fetish of liking to see small animals crushed to death - particularly by women wearing stiletto heels.

The law was enacted while Clinton was President.  And Clinton made clear when he signed the bill that despite its expansive language, it would only be used against the makers and distributers of crush videos. But as the Stevens case demonstrates, that's just not how it was used.

The good news for Stevens (and, for the Constitution and, really, for all of us) is that the Supreme Court saw through the law.  Unconstitutional, it said by a vote of 8-1.  Congress simply cannot designate a whole new category of speech (that which depicts cruelty to animals) as something outside the scope of the First Amendment.  Nor, and this is the part relevant here, can the promises of the government to act wisely enough to make constitutional the unconstitutional.

Writing for the Court, Chief Justice Roberts said this.

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

Trust us, we won't abuse the power.

Sure.  Right.  No deal.

Join me now in Queens, N.Y. where, according to this article in the NY Times, district attorney Richard Brown is

a leader in finding new uses for hate crime laws.

Credit assistant DA Kristen A. Kane.  She's the one who figured out that New York's hate crimes law can be applied to more than just, you know, hate crimes.  Here's what the law says in justification for its existence.

Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs.

That's likely true.  It's also treading a thin constitutional line, since the law essentially makes the "message of intolerance and discrimination" a basis for criminal punishment.  My own view is that hate crime laws are unconstitutional.  The Supremes don't share that perspective (see  Wisconsin v. Mitchell, 1993), though, and while I can pontificate, they actually get to decide the question.

But what they're doing in Queens is somewhat different.

Rather than using the law to enhance punishments for crimes motivated by "invidious hatred toward particular groups," Rather, they're using the statute to enhance punishments on those who target the elderly because they're believed to have money and to be easy prey.

They do that because the hate crime law as written doesn't limit itself to hate crimes.  And the USA Patriot Act, that post-9/11 abomination that allows the government to snoop and sniff and sneak and complicates your life in numerous ways that don't make us a bit safer from terrorists, a law that contains bunches of provisions Congress had refused and refused to pass year after year until 9/11 and then the word terrorism got used and Congress said, "Sure, where do we sign," the USA Patriot Act has been used to investigate and prosecute gamblers and pornographers and all sorts of baddies who don't have squat to do with terrorism.  And the original idea of social security numbers was that they were to be used only for purposes of the social security system.

A judge once told me (he was speaking of the Ohio General Assembly, but his point applies to every legislative body) that they shouldn't be allowed to touch criminal law because "they just fuck it up."  Yeah.

Because when you give them power, they'll find a way to abuse it.

And it's really not enough that the government promises to be careful and not abuse the power.  Because they will.  The promise of noblesse oblige is as empty today and in this Republic as it has always and everywhere been.  The reality is that the aristrocrats abused the peasants no matter what their assurances to the contrary.  And the government will, given the opportunity, abuse the citizens.

Back when I was in the 6th grade (more decades ago than I care to realize), I had a history teacher who offered this definition of "democracy."

Democracy is the system where you get to decide who your dictator will be.

That's not entirely accurate.  But it ain't altogether wrong, either.