The Right to Be Let Alone

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It is the best of times for government snooping and surveillance.

It is the worst of times for privacy and the Fourth Amendment.

The surveillance state should be dismantled, and the right to be let alone should be restored as the glory of the Republic.

This paper explains why and how.

Why Privacy Matters

The right to be let alone from government snooping or surveillance is the most cherished right among civilized peoples.

Privacy encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment.

Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Privacy is a cornerstone of a Republic where the people censure government; government does not censure the people. Consider the following.

No person on paper is clean.

Citizens will refrain from exposing and criticizing government fraud, waste, abuse, or lawlessness if they fear the government will retaliate by disclosing or sharing negative or embarrassing information from dossiers assembled through indiscriminate surveillance. They will become docile — a great menace to freedom according to Justice Brandeis in Whitney v. California, 274 U.S. 357 (1927) (concurring opinion). Edward R. Murrow, the scourge of Senator Joseph McCarthy (R-WI) similarly observed: “A nation of sheep will beget a government of wolves.”

Privacy was the spark of the American Revolution.

The urgency of citizen scrutiny of government has heightened as the size of government has grown from a small acorn in 1790 with a budget of less than $10 million and a few employees to a giant oak in 2017 with a budget exceeding $4 trillion and millions of employees. Further, Congress has virtually ceased to exercise oversight because of institutional sloth and incompetence coupled with a craving to escape responsibility. The Pentagon alone cannot account for a staggering $3 trillion in expenditures. Congress has become an invertebrate branch, which has created a corresponding need for fearless citizen criticism of government.

Privacy was the spark of the American Revolution. In 1761, James Otis denounced British Writs of Assistance. They empowered every petty official to rummage through homes and businesses in search of contraband or smuggled goods. He amplified: “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams chronicled: “Then and there the child of independence was born . . .”

In 1763, William Pitt the Elder spoke against an excise tax on cider to the British Parliament in words that thundered throughout the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government.

The Fourth Amendment was ratified to enshrine the right to be let alone as a constitutional imperative. Its protections do not depend on the outcome of any election or the spasms of public opinion frightened by terrorist attacks. As World War II raged, Supreme Court Justice Robert Jackson sermonized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Fourth Amendment intentionally creates barriers to law enforcement and a risk-free existence by delimiting the power of government to conduct searches and seizures that disturb privacy. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

Accordingly, the government must ordinarily obtain a warrant from a neutral magistrate based on probable cause and particularized suspicion of crime before individual privacy may be upset. In circumstances in which a warrant is not constitutionally mandated, searches and seizures must nevertheless satisfy a “reasonableness” standard.

The Constitution was intended to endure for the ages. Its authors knew that unforeseen changes in technology or otherwise would require atextual interpretations to honor the Constitution’s purposes. They understood, like St. Paul in 2 Corinthians 3:6, that “the letter killeth, but the spirit giveth life.” Thus, Chief Justice John Marshall observed in McCulloch v. Maryland, 17 U.S. 316 (1819) that the Constitution “was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The Fourth Amendment was ratified to prevent governmental evil — even at the expense of handicapping law enforcement.

The Supreme Court has instructed that the Fourth Amendment should be interpreted to safeguard privacy expectations despite vast changes in government surveillance technologies and capabilities that are no less robust than the privacy expectations of the citizenry in 1791 when the Amendment was ratified.

In Kyllo v. United States, 533 U.S. 27 (2001), the Court held that the warrantless use of a thermal-imaging device aimed at a private home violated the Fourth Amendment. Writing for the majority, Justice Antonin Scalia amplified:

While it may be difficult to refine the Katz [reasonable expectation of privacy test] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

Emails or text messages in the Age of the Internet are the functional equivalent of letters in 1791, and should thus command the same protection under the Fourth Amendment. And as to the latter, Justice Stephen J. Field declared in Ex Parte Jackson, 96 U.S. 727 (1877):

The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter,— between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.

Premium protection of privacy according to constitutional mandates does not mean weak government. Justice Jackson explained in West Virginia State Board of Education, supra:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government, not private miscreants, criminal organizations, or non-state actors like al Qaeda. The industrial scale slaughters of the Canaanites and Amalekites chronicled in the Old Testament are emblematic. In more recent times, the Third Reich, the Soviet Union, and Communist China have been complicit in genocide or crimes against humanity that have killed up to 200 million. Unlike private parties or non-state actors, government enjoys a monopoly of legalized violence and the power to tax and to conscript, which facilitates repression on a vast scale. The Fourth Amendment was ratified to prevent this government evil — even at the expense of handicapping law enforcement.

The Constitution — including the Fourth Amendment — is premised on the belief that accepting the risk of being the victim of injustice is morally superior to risking complicity in it. Thus, the due process clause requires proof beyond a reasonable doubt and jury unanimity for a criminal conviction. That standard means some guilty persons will escape punishment and be released with a risk of recidivism. But it also means a diminished risk of convicting the innocent and implicating the entire society in injustice. Justice John Marshall Harlan explained in In re Winship, 397 U.S. 358 (1970) (concurring opinion): “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

Even with the reasonable doubt standard, an alarming number of innocent defendants are convicted. According to the Innocence Project, there have been 333 post-conviction DNA exonerations alone since 1989. Of that number, 20 had served time on death row. On average, each innocent defendant had served 14 years in prison.

It is probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons.

The Fourth Amendment’s reasonableness standard circumscribes government searches and seizures despite the impairment to effective law enforcement. The reasonableness standard is first cousin to the reasonable doubt standard in criminal prosecutions. It is founded on the philosophical principle that it is better to protect the right to be let alone when there is no government showing of a compelling need than to apprehend and punish all criminals. The Fourth Amendment knowingly accepts the risk that some criminals will escape detection that unfree peoples do not because it prefers liberty to a futile quest for a risk-free existence.

Investigations of crime through searches or seizures encroach on liberty irrespective of whether a criminal charge is forthcoming.

The target must retain an attorney at substantial expense to protect against false suspicions or accusations. The investigation, simpliciter, makes the target socially or professionally radioactive — leading to ostracism, the loss of income, family strife, or worse. In the Age of the Internet, the target’s reputation may be irreparably blemished. False and defamatory statements emerging from an investigation are impossible to scrub from the electronic grid. There are countless Richard Jewells of the world of less notoriety.

The percentage of investigations that lead nowhere and thus gratuitously invade privacy is unknown. But clues are available from the Federal Bureau of Investigation’s assessment data. From 2009–2011, the Bureau opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search In May 2011 showed that 41,056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations — a false positive rate of over 95%. During that period, 39,437 assessments were initiated seeking signs of ordinary criminal activity, and 36,044 had been closed without result, while 1,329 had progressed to preliminary or full investigations — a false positive rate approaching 97%.

The Supreme Court’s crabbed interpretations of the Fourth Amendment have made privacy subservient to highly speculative claims of law enforcement and national security.

It is thus probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons. No law awards them compensation for the government’s invasion of their privacy and probable permanent loss of a livelihood.

In light of these considerations, the Fourth Amendment or complementary federal or state statutes should prohibit any government search or seizure that materially encroaches on the right to be let alone unless the encroachment furthers a compelling government interest and does so with techniques least disturbing to privacy. Search warrants that satisfy the Fourth Amendment should ordinarily not be utilized unless there is probable cause to believe that very serious criminal activity is afoot, not trivial crimes like marijuana possession or use.

The Withering Away of Privacy

The right to privacy has withered since 1791.

Federal criminal prohibitions have proliferated from a handful in 1790 to thousands today. Each prohibition provides a new government justification for invading privacy in the name of law enforcement. A study by the Federalist Society found that by 2007 the United States Code contained more than 4,450 criminal offenses.

Further, a growing number of federal crimes impose strict liability with no mens rea. They justify investigations with no suspicion that the target acted with a guilty mind.

Additionally, the government began the dragnet collection of foreign intelligence as the United States changed from a republic to a global empire. Foreign intelligence is virtually limitless in scope and generally shielded from legal accountability through the Executive Branch’s invocation of state secrets.

Technology has advanced by leaps and bounds that enable ever-greater government encroachments on privacy, for instance, the interception, retention, and search of every phone or email communication at relatively modest cost.

Finally, the Supreme Court’s crabbed interpretations of the Fourth Amendment — including the third party doctrine — have made privacy subservient to highly speculative claims of law enforcement or national security.

The Proliferation of Federal Criminal Prohibitions. Under the Constitution, there are no federal common law crimes, as the Supreme Court declared in United States v. Hudson, 11 U.S. 32 (1812). Federal crimes are creatures of statutes. The first was the Crimes Act of 1790. It created but a handful of offenses, for instance, misprision of treason, piracy, or counterfeiting.

No Department of Justice or Federal Bureau of Investigation was then created for law enforcement, which was largely ad hoc in response to private complaints.

At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately.

In 1791, privacy was tightly safeguarded against federal intrusions. Yet public safety was not compromised. The federal government scrupulously respected privacy for nearly a century after its beginning. The Supreme Court initially confronted Fourth Amendment claims in Ex Parte Jackson, supra, and Boyd v. United States, 116 U.S. 616 (1886). During the previous decades, crime was not a political issue in a single federal election campaign for the House, Senate, or presidency.

The presidency of Theodore Roosevelt inaugurated the federal regulatory state with the Pure Food and Drug Act of 1906 and Hepburn Act of 1906. Then came the Harrison Narcotics Act of 1914, the Prohibition Era, and the New Deal. By 1940, then Attorney General Robert Jackson was warning:

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes being unpopular with the predominant governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (“The Federal Prosecutor,” address delivered by Robert H. Jackson, April 1, 1940)

During the 75 years that have elapsed since the Attorney General’s address, the problem of investigative or prosecutorial abuses which cripple privacy has intensified. At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately. Renowned attorney Harvey Silverglate authored Three Felonies A Day in 2009. It chronicles the octopus-like expansion of the federal criminal law and corresponding law enforcement abuses portended by Jackson.

At present, the Department of Justice budget approximates $30 billion annually, a sum which supports more than 100,000 law enforcement personnel.

Federal Strict Liability Offenses. The federal regulatory state features a growing number of strict liability or public welfare offenses in which an innocent mind is no defense. Violations of the federal wire fraud statute or the Marine Mammal Protection Act are illustrative. Wade Martin was convicted under the latter act for selling sea otters to a person whom he mistakenly believed was a native Alaskan.

These types of crimes were unknown when the Fourth Amendment was ratified. Justice Robert Jackson explained the strong common law presumption of an evil intent combined with an evil act to satisfy the threshold for criminality in Morissette v. United States, 342 U.S. 246 (1952):

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a “vicious will."

The growth of strict liability offenses in the regulatory state further lowers the barriers to the initiation of government investigations that encroach upon privacy.

Foreign Intelligence. With the post-World War II transformation of the United States into a global power and the Cold War, the President commenced the collection of foreign intelligence without warrants or congressional oversight based upon an unbounded interpretation of Article II. At present, pursuant to Executive Order 12333, the government gathers foreign intelligence on the President’s say-so alone both domestically and abroad. The definition of foreign intelligence is sweeping, i.e., “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”

Foreign intelligence is also collected by the President within the United States under the Foreign Intelligence Surveillance Act, as amended.

The volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Internet communications are intercepted, retained, and searched without probable cause to believe crime or international terrorism is afoot. The magnitude of citizen privacy invaded under the Executive Order is unknown because its implementation is cloaked in secrecy, and the government cannot be trusted to volunteer the truth. The Director of National Intelligence, James Clapper, for instance, lied to the Senate Intelligence Committee under oath in denying that the National Security Agency was collecting data against millions of Americans.

Making reasonable inferences from the disclosures of Edward Snowden, the volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Technology. The development of technology since the ratification of the Bill of Rights has armed the government with unprecedented tools or instruments for invading privacy. They include wiretapping, surveillance drones, electronic surveillance, DNA collection, facial recognition equipment, thermal-imaging instruments, and instantaneous, inexpensive retrieval of information from vast databases. Supreme Court Justice Sonia Sotomayor amplified in United States v. Jones, 565 U.S. __ (2012) (concurring opinion):

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility,” Illinois v. Lidster, 540 U.S. 419, 426 (2004).

Supreme Court Decisions. The law is generally backward-looking and tardy in responding to new technology. Nearly forty years elapsed before the Supreme Court in Katz v. United States, 389 U.S. 347 (1967) corrected its erroneous holding in Olmstead v. United States, supra, that conversations were outside the protection of the Fourth Amendment.

Katz established a reasonable expectation of privacy standard to inform Fourth Amendment interpretations. But the Court soon rendered the standard toothless in a pair of decisions divorced from reality.

In United States v. Miller, 425 U.S. 435 (1976), the Court held that the Fourth Amendment is inapplicable to a customer’s bank records that are subpoenaed by the government for the purposes of criminal prosecution. Writing for the Court, Justice Lewis Powell explained:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751–752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

In Smith v. Maryland, 442 U.S. 735 (1979), the Court similarly held that a phone subscriber had no reasonable expectation of privacy in his dialed phone numbers because they were knowingly shared with the phone company. Thus, the Fourth Amendment did not apply to the government’s suspicion-less use of pen registers in the investigation of crime. Justice Harry Blackmun amplified:

When he used his phone, [the subscriber] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Both Miller and Smith are wildly misconceived. Everyone possesses a reasonable expectation that sensitive or confidential information shared with intimates or businesses for benign, professional, or narrow purposes will not be provided to the government. It has the motive and ability to imprison or otherwise harm you. Internet users share email content with internet service providers without any expectation that the National Security Agency will be privy to the communication. The same can be said, for text messages known to phone companies in the ordinary course of business. But under Miller and Smith, the Fourth Amendment leaves unprotected the contents of every email or text message communication in the United States. The NSA is defending the constitutionality of its bulk collection, retention, and search of telephony metadata regarding every phone call in the United States by relying on Miller and Smith.

Restoring the Right to Be Let Alone

Congress should not tarry in the enactment of legislation that rolls back the staggering encroachments on the right to be let alone that have transpired since the ratification of the Fourth Amendment in 1791.

Atop the agenda should be a Privacy Protection Restoration Act (PPRA), to provide as follows:

A person may assert as a defense in any proceeding alleging noncompliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy.

In determining whether compliance with a search warrant, subpoena, national security letter, or other government order would advance a compelling government interest, the court shall consider, among other things, the seriousness of the crime under investigation and documented proof that the investigatory technique to be used in obtaining the information has been substantially effective historically in preventing, deterring, or punishing crime or international terrorism.

The principles behind the PPRA should inform deliberations on pending legislation to update the obsolete Electronic Communications Privacy Act of 1986 (ECPA).

The Email Privacy Act would require the government to obtain a warrant based on probable cause to access the content of any email from an internet service provider irrespective of the email’s age. At present, ECPA restricts protection of email content to communications that have been stored for 180 days or less. That limit was held unconstitutional in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010). Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Globalization was in its infancy when ECPA was enacted. Most Internet communications and storage took place within the United States. The probability of interjurisdictional conflicts over stored emails outside the United States was more hypothetical than real. Congress predictably remained enigmatic on ECPA’s application to electronic records stored in foreign lands.

Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Three decades later, that opaqueness is unsatisfactory. Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft. In that case, the Department of Justice sought to compel Microsoft to produce emails located on servers in Dublin, Ireland. But the United States Court of Appeals denied that the Storage Communications Act granted that authority. The case might reach the United States Supreme Court.

During the last Congress, a bill known as LEADS would have addressed the issue in the following way.

The government would be authorized to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. There is nothing irregular about extraterritorial application of United States laws to the activities of its citizens. Congress, for instance, has criminalized foreign travel to engage in illicit sex (18 U.S.C. 2423).

The LEADS authorization, nevertheless, would have been worrisome. Reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. In other words, LEADS’ authorization to use search warrants to retrieve information about United States citizens stored abroad may be a cure worse than the disease.

How important are such search warrants to law enforcement?

At present, we are clueless. Such warrants may be vital or marginal to the investigation of serious crimes. A legislative precedent should not be created that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.

We cannot take the government’s law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.

Authoritarian governments can be expected to employ reciprocal power to persecute dissidents or otherwise violate human rights.

Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, nonspeculative evidence that the authority is necessary in a significant number of cases to prosecute significant crimes. The privacy of United States citizens should not be compromised absent demonstration of a compelling government need.

LEADS would have authorized an internet service provider to resist a search warrant’s use extraterritorially by proving that compliance would violate the laws of a foreign country to the issuing tribunal. But United States courts are amateurs in the interpretation of foreign laws. They would be prone to error absent expert testimony. And years could be consumed in litigating appeals of trial court decisions, which frequently would prove fatal to the investigation. The LEADS game for extraterritorial use of search warrants is probably not worth the candle.

Unless much more convincing evidence of law enforcement need is forthcoming, legislation should prohibit the use of search warrants extraterritorially to obtain electronic communications about United States citizens. That would avoid setting a precedent that would assist China, Russia, or other lawless nations in persecuting their dissidents without material offsetting benefits to United States law enforcement.

The United States would not go dark abroad without the use of search warrants extraterritorially. We have more than 50 Mutual Legal Assistance Treaties with other countries that facilitate the voluntary sharing of evidence and information in criminal cases or other government investigations. The MLAT process can be employed whether or not the information sought concerns a citizen or foreigner. It satisfies customary standards of international comity and avoids interjurisdictional conflicts. But new legislation can make the MLAT process more efficient and transparent.

Conclusion

Privacy is the cornerstone of a flourishing democratic dispensation that celebrates a liberty-centered universe. It has withered over the years succumbing to inflated claims of law enforcement or national security.

Congress should restore privacy as the crown jewel of the nation by enacting a Privacy Protection Restoration Act to impose a heavy burden on the government to justify every material encroachment on privacy. If Congress does nothing, privacy is destined to crucifixion on a national security cross.




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The Reusables

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My state, California, recently enacted a Bag Law. Intended to reduce the mighty environmental danger of plastic bags, it forbids drug stores and groceries from giving them out for free; they have to charge at least ten cents. This nanny-state microaggression was approved at last November’s general election, by the same voters who gave Hillary Clinton a majority in this state.

I have only anecdotal and speculative evidence about the effects of this law. I assume that workers who make plastic bags have been hurt, and that retailers have not been hurt, because they get to keep the ten cents. A slim majority of voters waked up in time to keep the money from going to some phony environmental fund.

Is saving a dime worth all that effort? Would it be worth ten cents to keep other customers from hating you?

As for the customers, a remarkable number of them are doing what the law wants them to do — bringing their own “reusable” bags.

Of course, some of them did that before the law was passed. These were environmental zanies, and their post-election conduct was predictable. They look smug, make self-congratulatory observations to the clerk, bother their kids with information about the purpose of “daddy’s bag,” etc. Such people were always few, and their numbers have not increased.

But there has been a substantial increase in the number of people who seem sane in other respects but are now showing up with reusables. Nowadays, I rarely hit the checkout line without being preceded by someone who spends five minutes, in close collaboration with the clerk, packing and repacking his week’s supply of groceries in a container made to hold an avocado, a piece of kale, and three back issues of Prevention magazine. Is saving a dime worth all that effort? Would it be worth ten cents to keep other customers from hating you? Would it be worth a dime to spare yourself the scientifically documented risk of disease entailed by the reuse of bags in public and the difficulty of washing them? By the way, wouldn’t it be worth ten cents, just to save yourself the trouble of washing a stupid shopping bag? Not to mention all the precious energy consumed in the process.

No rational defense of reusables is possible.

Now, on to me. I may not like the Bag Law — in fact, I detest it — but when I’m paying $50.00 for groceries, an increase of ten cents (twenty for double bagging) is insignificant. Compared to the hassle of dragging reusables around, it’s microscopic. I don’t mind carrying a wine bottle out in my own bare hands; in fact, It makes me feel all manly and edgy and lumpen. But I mind even less spending ten cents for a bag that will hold the wine, the frozen dinners, the two avocadoes, the tortilla soup, and that weird cheese from New Zealand, without any need for forethought or planning — a bag that will then be available the next day, to line the garbage can.

Of course, this is not a principled stand, but neither is it a principled stand to torture yourself with reusables — if you’re a normal person, that is. So why do normal persons do it?

The answer, according to a conservative-libertarian friend who also detests the law but who reluctantly admits to using reusable bags instead of paying the damned ten cents, is the following:

"I hate to waste money."

I’m puzzled by his reasoning. So you’d be wasting ten cents on a plastic bag, but you’re not wasting more than that on a reusable?

This is not a principled stand, but neither is it a principled stand to torture yourself with reusables — if you’re a normal person, that is.

 

Thinking about what he said, I discovered numerous parallel puzzlements. For example:

I never spend a minute balancing my checkbook, but I’ll spend an hour calling to protest a three-dollar overcharge on my credit card.

I’ve caught myself putting up with terrible service in store A, simply because I don’t want to waste five extra minutes to travel to store B.

We all know people who are grossly inconvenienced — even threatened in their lives or livelihood — by the machinations of X political party, but who will never, never vote for Y political party, because some proponent of Y once made some offensive remark, or because their Ma and Pa always voted for X.

These are all instances of being penny wise and pound foolish, and some serious research needs to be done on them. It might explain a lot about life on earth.

But my friend pointed out something else. He lives in what, according to South Park, is the citadel of “Smug” — the San Francisco Bay area. There, he says, he has observed the three types of bagholder whom I have observed, here in Southern California: the people (e.g., me) who just go ahead and pay the ten cents for a plastic bag, the people who reluctantly but willingly tote a reusable (that’s him), and the people who gleefully advertise their allegiance to reusables.

But he says that he frequently encounters a fourth type, which is worse, even, than the third: people for whom reusables became a fact of nature as soon as the Bag Law was passed, people who see them not as a hardship or a puzzlement or a moral victory but as an expression of the way things ever were and ever ought to be. For them, there is no problem — because they are the problem.




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More Equal than Others

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One spring, just before the end of the Cold War, my wife and I visited Riga. On a walk, we stumbled upon an informal street market. The goods set out on the pavement and the appearance of the vendors told us that times were tough in Latvia. A young man with very bad teeth standing behind a rickety folding tray with a row of rusty fishhooks on it told me in a mixture of German and English how the Russians had polluted the Gulf of Riga so badly that the fish caught there were not safe to eat.

Suddenly, an olive-colored truck with a tarp stretched over the back rumbled into the market and struck a pedestrian, knocking him to the pavement. The driver of the truck stopped, jumped out, walked over to the guy, who seemed tipsy, yelled at him, smacked him around a bit, then got back into the truck and drove off. The guy sat there for a moment, wiped some blood from his face, got up slowly, and limped off. I looked around. No one offered to help. No one wrote down the license number of the truck. No one looked the least bit surprised. The fishhook seller looked at me and shrugged.

* * *

The social contract can be understood as a deal. You are obligated to act within the law. As long as you do, society is obligated to protect your rights. Should you act outside the law, your rights are subject to forfeiture, which means society can take your property, your liberty, or, sometimes, your life. Even though you didn’t sign the social contract, that’s the way it is, like it or not. (In reality, it’s not so simple, of course, but this thumbnail description will do for now.)

A crucial clause of this unwritten contract is that everyone in society is bound by its terms. Everyone is obligated to act within the law. Whoever you are, should you act illegally, your rights are subject to proportionate forfeiture. On the flip side, society is obligated to protect the rights of everyone. Whoever you are, provided you act legally, society must protect your rights. This is sometimes called equality before the law. Without this clause, the social contract can be said to be void, which means it does not exist. Put another way, this equality clause is a sine qua non of the social contract. (Again, it’s more complicated than that, but that’s close enough.)

The driver of the truck stopped, jumped out, walked over to the guy, who seemed tipsy, yelled at him, smacked him around a bit, then got back into the truck and drove off.

In a way, then, there are two kinds of inequality before the law. The first occurs when society fails to protect the rights of someone who has acted within the law. This tends to happen to people who are socially and politically powerless. The second occurs when someone acts outside the law and society fails to impose any consequence, or a proportionate one. This usually happens to the powerful. Only when such a failure on the part of society to protect or to punish happens because of the status of the person in question is it a clear example of inequality before the law. Both kinds of failure result in what is sometimes called a miscarriage of justice.

"Thirty Years on Death Row," a 60 Minutes episode first aired on October 11, 2015, provides a good example of the first kind of miscarriage of justice. Glenn Ford was convicted of murder in 1983, then spent 30 years in solitary confinement on death row in Angola prison before the real killer was identified and Ford was released, only to die a few years later of cancer. Marty Stroud, the prosecutor who sent Ford to prison, confesses that he pressed his case at the trial to get a guilty verdict when he knew that some of the evidence was dubious. He admits that the prosecution was successful only because Ford was a poor black man facing an all white jury. He knew at the trial that the defense team had never tried a criminal case, much less a capital one, and that they were hopelessly overmatched, in both experience and resources.

In 1962, the young, drunk scion of a wealthy family in Maryland angrily struck a barmaid with his cane. She died. The killer was fined $625 and served a six-month prison sentence. This is an example of the second kind of miscarriage of justice, where society fails to punish proportionately. The inadequate sentence prompted Nobel Laureate Bob Dylan to write the song "The Lonesome Death of Hattie Carroll." She was the black barmaid. Society failed in its obligation under the terms of the social contract to adequately punish William Zantzinger, the rich white guy who killed Ms. Carroll.

Everyone agrees that a Romanian hacker, who says he breached the server, revealed to the world that it existed and that the secretary tried to cover her tracks.

The distinction between these two kinds of miscarriages of justice can become blurred. Some consider the deaths of Michael Brown and Freddie Gray to be examples of society’s failure to protect the rights of the powerless, while others see them primarily as examples of society’s failure to punish their empowered killers. Still others see the deaths as tragedies or simple misfortunes, but not examples of injustice. Similarly, some think that the rights of Mary Jo Kopechne were not protected by society when Edward M. Kennedy was given a two-month suspended sentence for leaving her to suffocate in a submerged car, waiting nine hours even to report the accident. It has also been said that his real punishment was that he never got the keys to the Oval Office. Did O.J. Simpson escape the consequences of his illegal actions because he was a wealthy celebrity, or was he hounded by the system because of his race? Or is the fate of his wife the greater tragedy? Each purported miscarriage of justice is different and, as has been said, these matters are complicated.

That Secretary of State Hillary Clinton installed a private, unsecured email server in the basement of her house in Chappaqua to conduct both private and government business is not disputed. Neither is the fact that through this server she exchanged emails with people both inside and outside the government, including President Obama. That these emails contained a variety of classified information, including some at the very highest level, is a matter of record. Everyone agrees that a Romanian hacker, who says he breached the server, revealed to the world that it existed and that the secretary tried to cover her tracks. Testimony shows that laptops and Blackberries were destroyed, that the server itself was digitally wiped clean, and that tens of thousands of emails were permanently erased. A few of the emails that were recovered reveal parts of this clandestine effort. (It seems that Hillary Rodham learned a valuable lesson when she helped the House Judiciary Committee prepare the case against President Nixon in 1974: when they ask for the tapes, burn them, especially the 18-and-a-half minute bit about yoga lessons in Benghazi.) A few of her underlings negotiated immunity deals with the FBI, the Fifth Amendment right against self-incrimination was invoked at least once, and the Secretary herself repeatedly said, “I can’t recall.”

I take it as a given that Secretary Clinton broke federal law. Tens of millions of Americans think so, even many of her strongest supporters. I’m pretty sure that FBI Director Comey thinks so, too. And Secretary Clinton certainly knows that she did, unless, of course, she forgot. If you don’t accept this premise, it is suggested that you read the statute in question (focus on Section [f]) and a chronology of the events surrounding the server. If, after reading these, you still think that Secretary Clinton did not act outside the law, well, bless your heart.

On July 5, 2016, Director Comey recommended that the Secretary not be indicted, saying,

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”

I take it as a given that Secretary Clinton broke federal law. And Secretary Clinton certainly knows that she did, unless, of course, she forgot.

Let us do a little thought experiment. Let us say that you sent and received top-secret documents to and from people both in and out of government over your very own unsecured basement server. Let us say that a guy in Romania tipped off the FBI and you tried to destroy the evidence. Where do you think you would be right now? If you answered, “I would be tightly lodged in the slowly grinding wheels of the vast criminal justice system,” you have a firm grasp on reality.

So why did Director Comey conclude that no reasonable prosecutor would indict Secretary Clinton? What factors was he weighing when he decided not to bring charges against her? The evidence of her wrongdoing is certainly strong, there are mountains of evidence, much of it relating to her use of classified documents. It couldn’t be that. The intent to communicate classified government information outside secure, authorized channels is clear. Couldn’t be that. The intent to destroy evidence and obstruct justice is clear. Not that, either. While she probably didn’t intend to share her emails with foreign governments, we know that her negligence makes it entirely likely that she inadvertently did. And since the intent to commit espionage is not required for the statute to be violated, what factors was the director, in fact, weighing?

Now, I don’t know James Comey and harbor no ill will toward him. I do, however, wish to explore the possible motives behind his surprising July 15 decision. In doing so, I may give the impression that I am bringing into question his character. I’m not. I’m simply trying to answer this question: why did he do it?

Could it be that Director Comey realized that Secretary Clinton is not some television cooking show host like Martha Stewart, whom he threw the book at for being less than candid with the FBI about a stock tip a friend had given her? He sent Martha to the big house for her fib, but this is different. After all, Hillary Clinton is the former first lady, the former senator from New York, the former secretary of state, and the current Democratic Party nominee for the presidency of the United States. It makes perfect sense. What reasonable prosecuting attorney would bring charges against someone with such power? That would be an obvious consideration. Why, the wrong choice could end careers: hers, her underlings’, or the prosecuting attorney’s, or, even worse, the career of the director of the FBI.

Is it possible that Director Comey was gazing at the organizational chart of the US government when he made his responsible decision to let her slide?

Or was he thinking back to his time as special deputy counsel to the Senate Whitewater Committee, when he and his colleagues concluded, after thousands of hours of exhausting legal work, that despite the fact that Hillary Clinton had engaged in a “highly improper pattern of deliberate misconduct,” the evidence uncovered just wasn’t enough to ensure a conviction, and it was reluctantly decided not to indict? He probably knew she was guilty, but even then she managed to slip the net (“I can’t recall”). Who’d want to go through that again? Or could it be that he was thinking of how a similar situation was handled in the past, when the secretary’s husband was investigated and charged by Special Prosecutor Kenneth Starr, who was lampooned on every late-night talk and comedy show, who was targeted by mocking books and bawdy stage productions, who was keelhauled by every major media outlet in the country? Could it be that the director glimpsed a Kim Philby-like future, living in exile in some god-forsaken red state, scribbling self-justifying memoirs that the New York Review of Books would never deign to crack?

Or could it be that he had to consider the hierarchical context of the actions in question? Let’s see. Comey’s boss is Attorney General Loretta Lynch. Lynch’s former boss was President Clinton. Her present boss is President Obama. The president appointed the former secretary of state. The former president is the husband of the former secretary of state. Is it possible that Director Comey was gazing at the organizational chart of the USG when he made his responsible decision to let her slide?

Or maybe Director Comey’s considerations were loftier. Perhaps he was looking at a wider context, his gaze fixed upon some greater good. Maybe he realized that if he were to recommend the indictment of the Democratic nominee, he would be increasing the probability that the successor to President Obama would be Donald J. Trump. And maybe, just maybe, he considered that outcome to be less than desirable. If so, consider his dilemma: his clear duty as the director of the FBI was to recommend indictment (ask any FBI agent), but he may have decided that his higher duty as a loyal American was quietly to induce a miscarriage of justice — to abort justice, so to speak, just this once, to prevent a much greater evil from being born. Many would sympathize with this dark impulse.

Could he really have thought that preventing this electoral end would justify these extralegal means? If it is unbelievable that Director Comey consciously considered this, is it just possible that these #nevertrump prejudices could have given his other rationalizations for letting the secretary skate that last little, but necessary, subconscious nudge? The NPR radio piece, “How the Concept of Implicit Bias Came Into Being,”broadcast on Morning Edition, October 17, 2016, lays out the latest science that explains how the director’s decision could have been guided by forces of which he was not even aware. Seriously. You can listen to it here.

When people feel that there is no longer equality before the law, and the social contract has been broken, the result might be a demonstration, a riot, or even a revolution.

But no, to assign these motives to Director Comey would put him on the ethical level of John Wilkes Booth, who was sure that Providence had sent him to smite the tyrant with his own hand. To suggest that the country’s top cop adopted the ethics of the assassin, putting himself above and outside the law, might be unfair. And if his sole motive was to stop Trump, it wouldn’t be a very good example of inequality before the law, would it? Sure, failure to punish would still make him a bit of a weasel, but it wouldn’t, strictly speaking, be because Secretary Clinton’s power was shielding her from the law so much as because Director Comey feared Donald J. Trump more than he feared her. In any case, motives are often mixed and hard to discern, as Director Comey can, and perhaps will, testify. But I rant.

What now? In a more perfect world, Secretary Clinton would call a presser, preferably before Election Day, and say, “I did it.” This would be the right and proper thing to do. But while Secretary Clinton may surprise us all and be a very late bloomer in the personal integrity department, it is unlikely. So it falls to Director Comey to man up and say, “She did it.” You are not advised to hold your breath.

Here is the way the cookie will crumble. Come January, Hillary Clinton will look the compliant Chief Justice Roberts squarely in the eye and swear to him, under oath, mind you, that she will defend the Constitution of the United States. At that moment, tens of millions of Americans gazing at their gigantic flat screens will blink. And in that instant, the world will change, for they will realize that, in this country at least, there is no longer equality before the law. There will be a loud crack, as the social contract is broken. And there will be a loud pop as that contract ceases to exist. The mutual obligations it stipulated will disappear like so many emails in a vat of BleachBit. And what will happen then?

Let us hit pause here and reflect that no one has to die for a miscarriage of justice to occur. In 1992, the policemen who had beaten Rodney King were acquitted. Many thought that this was a miscarriage of justice that violated the terms of the social contract, rendering it void. They believed that their obligation to act within the law had ceased to exist. The riots that followed resulted in 55 deaths. The 2011 Occupy Wall Street movement was fueled by the perceived injustice of banking executives, the people who were thought to have caused the financial crisis, successfully slipping the net. Tens of thousands demonstrated in various ways all around the country. Thousands were arrested. It was felt that the powerless had lost their homes and fortunes while the government busied itself bailing out the powerful who had caused those losses. We are the 99%.

When people feel that there is no longer equality before the law, and the social contract has been broken, the result might be a demonstration, a riot, or even a revolution. The March on Washington and the Los Angeles Riot of 1992 were about equality before the law. The American Revolution itself was in large part about the British subjects in North America being treated differently from those in England. The grievances in the Declaration of Independence are a litany of this unfair and unequal treatment. On a personal note, I was in Beijing in 1989, and in Tiananmen Square a few days before the massacre. It is underreported today that one of the key grievances of the students who started the demonstrations was that the children of powerful Communist Party leaders were afforded wealth, privileges, and opportunities that no one else could even dream of. As those children were also often lazy, overweight, and incompetent, they were mockingly called “rice bags,” as they were only good at consuming, not producing. The problem with these “princelings” continues to be a sore point in China today. There is one law for them and another law for the powerless masses. And where there is no justice, there often is no peace. Hit pause again.

What will happen when Hillary Clinton says, “so help me God”? I don’t think that there will be a revolution, do you? I mean, are you going to man the barricades? No riots, either. There may be a demonstration or two, but it won’t amount to much. No, what will happen is that tens of millions of people will see the law as less important than they did the day before. The small voice that says not to break the law will be harder to hear. The pang of guilt that is felt when the law is broken will be less sharp. On a scale of one to ten, that pain will fall from an 8 to a 2, give or take.

There is one law for the princely and another law for the powerless masses. And where there is no justice, there often is no peace.

Then, when the law comes between one of these millions of people and something he wants, whether it’s a little illegal protection against Freedom of Information Act requests or a charitable donation from a foreign potentate buying a favor, or even a simple fraudulent tax deduction, he will be more likely to follow the example of his leader and break that law. Taking his cues from his president, he will weigh not the legality of the act but the probability that charges will be brought. Then, if he is caught breaking the law, he will do everything he can to destroy and conceal the evidence, and, if questioned about the alleged violation, he will lie as necessary. And should this citizen be placed under oath, he will follow the example of the leader of the free world and say, “I can’t recall.” That is what will happen.

* * *

Looking out from the top floor restaurant of the Intourist Hotel in Riga, my wife and I spotted a church spire less than a mile east. It looked like it had been plucked out of Chicago. We set out on foot. It turned out to be a late 19th-century Lutheran brick church ringed by a cobblestone traffic oval, surrounded by six-story Germanic townhouses of about the same age that had fallen into disrepair. Across the street from the front of the church, occupying one of the old townhouses, was some sort of military headquarters, with olive-colored Russian jeeps in front. Disappointed to find the arched doors of the church boarded up, we decided to walk around it.

On the side of the church, under another arch protruding from the basement, was a small door that was ajar. Pushing the door open, we stepped into a dark, vaulted hallway that turned immediately to the right. There was a dim bare bulb 20 or so feet ahead, with a poster behind it in Latvian that showed a fist, if I remember it right. It might have shown manacles being broken. I’m not sure. Hearing muffled voices, we turned left and found ourselves at a counter, behind which were 20 or so people working at poorly lit tables under a low groin-vaulted brick ceiling. A young man with an emerging mustache approached us, asked something in Latvian, quickly gave up and left, only to return with a young woman who spoke some English.

Here, they are daring to bring back to life a country that has been smothered by decades of injustice.

She explained that they were preparing for the election of a shadow government that would be ready to step up if the Russians were to grant independence. I think she said that it would oversee the drafting of a new constitution and the creation of a new democratic government, as opposed to a democratic people’s republic. She gave us a roster of the candidates, with names, photos, nationalities, and other information. I remember that some were Russian. There were two collection boxes on the counter. One was to help pay for the election, the other to help restore and reopen the church. I asked if she really thought that the Soviet Union was going to leave and allow the Latvians to be free. Her eyes teared up as she said, “We have to believe this.”

I remember thinking: here, in the dimly-lit basement of a boarded-up church under the shadow of a foreign regime whose bizarre idea of a social contract is based on fear, power, and obedience, with no rights worth mentioning, a regime whose historical resume is long on serfdom and autocracy and short on democracy and freedom, these people are attempting to forge an authentic social contract. Here, they are daring to bring back to life a country that has been smothered by decades of injustice, and occupied by foreign powers for centuries before that. They want to create a country where the people make the laws and the people act within the laws, knowing that society will protect their rights and enforce those laws, knowing that when someone, anyone, no matter how powerful, acts outside the law, society, in the name of the people, will fulfill its obligation to punish that person proportionately. I thought: they are sick and tired of living in a country where miscarriages of justice are so commonplace that when they occur people simply shrug.

I had not been so moved since Old Yeller died. I broke my long-standing policy of not donating to religious or political causes and put some money in both boxes. Not much, but some.

* * *

Today, I had to go to Google Earth to find the church, because I couldn’t remember its name. It is St. Gertrude’s Old Church. Here are some photos. Have a look. Go ahead.




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Investigation of a Citizen Above Justice

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I’m not sure why Hillary Clinton does anything she does, but I know she has a way of reminding me of old movies. Gangster movies, of course — though not the Godfather kind, in which you’re supposed to sympathize with the profound psychological and metaphysical conflicts of the leading characters. No one actually sympathizes with Hillary Clinton. I’m reminded more of the primitive gangster films, which teach you that some guys just want to be king of the world and will do anything to reach the peak, or preserve the illusion.

Those aren’t the only movies I associate with her. She often makes me think of His Girl Friday, where Earl Williams, the goofy gunman, is involved in so many ridiculous and, as Donald Trump would say, unbelievable incidents that a newspaper reporter says, “I’m pretending there ain’t any Earl Williams.”It’s a relief to pretend that there ain’t any Hillary Clinton.

Clinton violated the law, grossly, repeatedly, and ridiculously. She then told a long string of gross and ridiculous lies.

But the strongest cinematic parallel I can find to the Clinton story is a once-famous Italian movie that is called in English Investigation of a Citizen Above Suspicion (1970). In it, a ranking police officer commits a crime and then gets the idea of establishing his superiority to normal people by submitting to an investigation that shows he is guilty — obviously guilty — yet does not lead to his arrest.

The parallel with Clinton is evident. In the emails episode alone, Clinton violated the law, grossly, repeatedly, and ridiculously. She then told a long string of gross and ridiculous lies, all of them conflicting preposterously with common sense, and with one another. The FBI, led by the vaunted Mr. Comey, spent thousands of hoursinvestigating her, located (without any difficulty) the incriminating facts, listened to many additional ridiculous lies, and discovered that Citizen Clinton could not be prosecuted because there was no evidence she intended to violate any of the laws she schemed to violate.

That’s basically how the Italian movie turns out. The power structure can never conceive of indicting one of its own. The bad guy wins — in two ways, one of them more important to him (and to me) than the other. He doesn’t get indicted; that’s the relatively unimportant win. The more important one is his demonstration that people like him are above the law. Members of the elite are never punished; they are immune. Their immunity is the proof of their status, the validation of their identity, and the source of their joy. That’s the vital thing. If you wonder what Mrs. Clinton does with the time she doesn’t spend on fundraising (and, of course, lying), I think I have an answer. She spends most of her time laughing at honest people who have a job.

/em




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The Art of the Jungle

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Sometimes a movie should be approached from the perspective of its artistry more than its philosophy or its storyline. The new Jungle Book is one of those films.

Sure, we could examine the underlying theme represented by the “Law of the Jungle”: For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack. We could debate whether this philosophy favors the individual or the community. (I think it favors the individual, since “the Law” feels more like an invitation and a promise than a command or a threat.) We could also comment on the Law of Peace that wary animal species establish in the movie to gain safe access to water during a drought: the animals agree not to attack one another when they are at the only available watering hole. The truce is enforced simply by their own self-interest and their consideration of long-term consequences should they violate it. Isn’t that a lot like the libertarian tenet that commerce or trade is preferable to war for people who have different values and beliefs?

Even more stunning is the way the animals move — not as animals imitating people, but with the darting gestures or lumbering heft of animals who happen to speak.

We could also howl at the way the well-structured anapestic rhythm of Kipling’s original language has been marred by the wolves’ substituting And the Wolf that keeps it shall prosper, but the Wolf that breaks it must die for Kipling’s measured scansion: And the Wolf that shall keep it may prosper, but the Wolf that shall break it must die — a small thing, but I shall use it in my intro to poetry courses.

But right now, let’s just focus on the beauty of this film, the quality of the acting, the massive number of people who worked in harmony to produce it, and the amazing technology that made it possible.

The film opens with Mowgli (Neel Sethi), clad in a red loincloth, dashing barefoot through the jungle over rocks, across trees, through bushes until a branch snaps and he plummets to the ground. But there aren’t any trees — or grass or rocks or bushes, or ground for that matter; the movie was filmed entirely through digital animation and live-capture action in a studio in West L.A. The VFX (Visual Effects) are simply stunning, from the realistic blades of grass and bark of the trees to the fur on the animals and the way the wind ruffles the scene. Even more stunning is the way the animals move — not as animals imitating people, but with the darting gestures or lumbering heft of animals who happen to speak.

Adding to the sense of realism is the fact that Mowgli has scars, bruises, scrapes, and cuts, as one would expect of a young boy who lives in the wild. (In fact, watch for the scars on his shoulders — one seems to be an R, and the other a K, in a nod to Rudyard Kipling.)

Twelve-year-old Neel Sethi was the only live actor in this film and performed entirely on a blue screen set, assisted by mechanical stand-ins and director Jon Favreau, who often stood just off screen to help focus Sethi’s eye lines. He had to imagine the animals pursuing him, the bees stinging him, the trees he was climbing, and the conversations he was having. As Mowgli, he appears in nearly every scene, so the success of this $175,000,000 production rested on his acting abilities. He is utterly believable and engaging throughout.

Kipling wrote many poems encouraging boys to behave like men. In this film, Favreau encourages humans to be themselves.

An additional challenge with a film of this scope is scheduling the live work fast enough so the actor doesn’t age over the course of the film. That means all the animation had to be set in stone before live filming began — no retakes are possible when the other cast members require weeks or months to recreate.

The actors who voiced the animals did their work separately within a sound booth, of course, long before Sethi entered the scene. They, too, must imagine the action and react to other characters virtually. They imbue their characters with their personalities simply through the inflection of their voices, and rely on animators to add gestures and facial expressions to bring the characters to life in other ways. Bill Murray as the bear Baloo and Christopher Walken as the gigantopithecus King Louis (an orangutan in the 1967 version) are particularly impressive. Murray’s low-key, offhand, Teddy-bear delivery is funny and endearing, while Walken’s Brooklyn accent is completely different from the way Louie Prima envisioned King Louis in the 1967 version. In fact, Louis’ sinister entrance is reminiscent of Colonel Walter E. Kurtz (Marlon Brando) in Apocalypse Now.

This is not a musical, but it would not be The Jungle Book without some of the beloved songs from the 1967 version (which was the last animated feature on which Walt Disney himself worked; he died before it was released). Favreau introduces the familiar melodies subtly within the background score, and when they do sing, it happens naturally, the way one would sing on a sunny day. Baloo and Mowgli float down a river singing “The Bear Necessities,” but they don’t dance. Other songs from the original also show up, but not until the credits roll (Kaa’s “Trust in Me” performed by Scarlett Johannson, King Louis’ “I Wanna Be Like You” performed by Christopher Walken, and a reprise of “The Bear Necessities” by Kermit Ruffins. So don’t be in a hurry to jump up from your seat when the book closes.

The Jungle Book is a story about self-discovery, manhood, and learning whom to trust. This version also presents a fair view of humans, who can be bad, as represented by their introducing fire to the jungle (never mind that lightning had been causing forest fires long before that!) but can also be very good if allowed to develop in a natural habitat. At first Mowgli suppresses his human qualities of problem-solving and tool-building, guided by his guardian panther Bagheera (Ben Kingsley) and his adoptive wolf-mother Raksha (Lupito Nyong’o) to “fit in with the pack.” But Baloo sees the value of Mowgli’s remarkable inventiveness, and encourages him to use it productively. Eventually Mowgli’s tool-building skills save the pack and everyone else in the jungle.

Influenced by 19th-century sensibilities about gender roles and manhood in particular, Kipling wrote many poems encouraging boys to behave like men. In this film, director Favreau encourages humans to be themselves. By taking care of himself, Mowgli also takes care of the pack. I think that’s a pretty good law of the jungle.


Editor's Note: Review of "The Jungle Book," directed by Jon Favreau. Walt Disney Pictures, 2016, 105 minutes.



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Antonin Scalia, R.I.P.

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This week Liberty's editors provide two different takes on Justice Scalia's passing. Stephen Cox's elegy is here. - See more at: http://libertyunbound.com/node/1519#sthash.dl79qO6R.dpuf
This week Liberty's editors provide two different takes on Justice Scalia's passing. Stephen Cox's elegy is here. - See more at: http://libertyunbound.com/node/1519#sthash.dl79qO6R.dpuf

This week Liberty's editors provide two different takes on Justice Scalia's passing.
Andrew Ferguson speaks ill of the dead here.

Justice Antonin Scalia, who died on February 12, was a person of intransigent mind, with a well-justified contempt for the intellectual weakness and silliness of his professional colleagues. He was the greatest influence on the Supreme Court in its present period and the Court’s best writer since, perhaps, the 1930s. He was devoted to the idea that the Constitution means what it says, not what a momentarily prestigious legal philosophy thinks it should say. He tried to interpret the Constitution according to its actual words, not according to the results he himself might have preferred. For that reason, his passing is a disaster for everyone who believes in constitutional, and therefore limited, government.

Among other good things, Scalia:

  • Attempted to keep organs of the executive branch from becoming “junior varsity Congress[es],” establishing rules, procedures and “guidelines” that had the force of law.
  • Spoke for the Court in denying government the power to circumvent the Constitution’s search-and-seizure provisions by the use of new electronic methods.
  • Spoke for the Court in denying government the right to use claims of “hate speech” to circumvent constitutional rights.
  • Spoke for the Court in maintaining Americans’ rights to gun ownership in the crucial Heller case, and dissented forcefully when the Court declined to consider more advanced Second-Amendment cases.
  • Spoke for the Court in maintaining the right to sell ultraviolent video games.
  • Memorably opposed the majority decisions upholding Obamacare: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
  • In connection with the same decisions, stripped the mask of impartiality from his colleagues’ sorry faces: “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. . . . And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
  • Provided the deciding vote for freedom and fairness in eminent domain, in the Williamson Country Regional Planning case.
  • Was strongly influential in arguing against the use of “balancing act” criteria in decisions about constitutional rights.
  • Was strongly influential in arguing against the use of “legislative history” as a way of qualifying or reversing the explicit meaning of statutes.

This list might be greatly extended. I could also compile a list of Scalia’s inconsistencies and blindnesses. But the fact is that for decades Scalia was the intellectual leader of the Court, whenever it admitted of any intellectual leadership, and the best bulwark of constitutionalists against the ability of modern-liberal judges to make the constitution what their ideology thinks it ought to be.

Scalia was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there.

Many libertarians don’t like Scalia, because of his particular rulings. So be it. But the disagreement often goes deeper. It goes to the philosophy of interpretation that many libertarians maintain. They think the Constitution was written to express broad principles of individual freedom and that its wording must always be interpreted in that light. Like modern liberals, who frequently refer to the Constitution as a “living entity,” the meanings of which are not bound by its actual wording, they want judicial decisions to embody a wide range of rights (i.e., a right to “privacy”) that never come close to being mentioned by the Constitution. If you want a judge to find them there, how can you object when the judge finds a lot of other things that aren’t there, and enforces them? This is what modern liberal jurists have been doing for several generations, and libertarians should not try to wish it away by appealing to essentially the same philosophy.

It was in his opposition to such ideas that Scalia truly distinguished himself. He was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there. He knew he would be despised as unsophisticated, at best, and as a mere advocate of his own bigotries, at worst. He repaid scorn with scorn — and who would not be scornful of the sophistries of Chief Justice Roberts, cynically arguing for the constitutionality of Obamacare immediately after he had argued for its unconstitutionality, or the inanities of the four modern liberal justices, who never saw a modern liberal law they didn’t like? What reflective person would deny Scalia’s contention that "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views"? When Scalia joined the Court, this idea, though obvious, had been evaded for far too long, with devastating effects on the constitution’s system of limited government. Scalia’s aggressive advocacy of “textualism” gave it new importance, made its intellectual power impossible to ignore.

The truth is that the Constitution, if interpreted in the light of what it says, not of the pleasant emanations we sometimes feel radiating from its penumbra, would give us a world incomparably more libertarian than the one we currently inhabit. It would not be a world governed solely by principles of individual right, because the Constitution was not written solely to do that. But it would be a world so free that it would be a pleasure to suggest the few revisions that would complete the picture — instead of spending immense amounts of time and money fighting off attacks by modern liberals and conservatives who believe in legislating from the bench. And this is what people who care about individual freedom will now have to do, during the long, intellectually dismal period between Justice Scalia’s death and the confirmation of his successor.




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Antonin Scalia, R.I.P.

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This week Liberty's editors provide two different takes on Justice Scalia's passing.
Stephen Cox's elegy is here.

Antonin Scalia, longtime associate justice of the Supreme Court of the United States, was a talented writer whose position afforded him innumerable chances to wield his pen in forceful argument for his often curiously shifting but nonetheless deeply felt views. He was also by some distance the most public justice, often giving speeches laying out his judicial philosophy and thoughts on upcoming jurisprudence, sometimes to the point that he had to recuse himself from a case.

Scalia’s pompous blowhardity made him a gleefully divisive figure in the highest court of a land drifting ever farther away from his own conservative, masculinist Catholicism. After Harvard Law and a little while in private practice, Scalia taught for several years at the University of Virginia Law School, and would later return to academia at the University of Chicago. His own jurisprudence bore the hallmarks of his time as a teacher: his opinions—which, unlike many justices, he did not largely hand off to his passel of clerks—were didactic, condescending, and all-too-aware of the distance between his enrobed augustness and all else outside the cloakroom.

As a public figure, Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed. He scarcely met a presidential prerogative he didn’t like, whether the right to order the torture of supposed enemies, deny due process at will, or pursue “interstate commerce” into the individual home. Despite his famed “faint-hearted originalism,” Scalia was never far from trampling over the Ninth and Tenth Amendments in the service of executive might. Even when his decisions favored a broadly libertarian policy, such as eliminations of gun control or overturnings of illegal searches, they often did so in a way that declined to limit future exercises of the power of the state. More often, though, when he looked to the Constitution, he found justifications for his own predilections to expand use of the death penalty even to the mentally disabled, criminalize homosexual acts, and sign onto four separate dissents against gay marriage.

Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed.

It is, in one sense, ironic that the first response of Republican legislators to the death of their originalist hero was to defy constitutional statements clearly allowing the sitting president, no matter how lame a duck he might be, to suggest a replacement for the fallen justice. But it’s certainly not surprising: in this, the GOP is simply following Scalia’s own example (as well as that of basically every other politician), honoring and vociferously upholding the Constitution when it supports their own tribal position, and ignoring it as soon as it suits them to do so.

There remains a great deal to sort out in the wake of Justice Scalia’s sudden death. Any cases for which decisions have not been rendered, even those which have been argued and voted upon, will not take Scalia’s vote into account. In the short term, this means public unions nationwide get a reprieve from right-to-work measures, and President Obama’s climate change plan is likely to survive a little longer. In the medium term, it means a nasty confirmation fight, as Obama tries to get a justice though a Republican Congress with no intention to allow one. (Probably the worst case here, actually, is a compromise candidate in the form of a socially moderate, tough-on-crime-and-terroists type, à la David Barron.) In the long run, the court has lost its most entertaining and most self-consciously intellectual jurist. We could do with a few less like him.



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The Honorable Profession of Spying?

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Americans love to hate lawyers, and I admit to having told a shark joke or two in my time. But many attorneys deserve our praise for their wisdom, their trust, and their integrity. James Donovan was one of them. Not only did he risk his own reputation to defend a despised Soviet spy, but he successfully negotiated the exchange of that spy for one of our own spies five years later, and then went on to negotiate the release of thousands of prisoners in Cuba after the Bay of Pigs disaster, exchanging them for food and medicine that would benefit the Cuban people rather than for money that would line Castro’s pockets. Bridge of Spies tells the story of his most famous exchange: convicted spy Rudolf Abel, a Soviet intelligence officer, for downed American pilot Francis Gary Powers.

The film opens on Rudolf Abel (Mark Rylance), quietly painting a self-portrait in his small Brooklyn apartment. Abel might be a dangerous Soviet spy, but in appearance he is a sad sack who suffers from post-nasal drip. His mouth seems permanently downturned in a frown, and he walks with a determined but plodding shuffle. He speaks only when absolutely necessary, and not at all for the first 15 minutes of the film, as we follow him to an information “drop.” Even when American agents storm through his door, he remains unruffled and quietly cleans his paint palette. Later, when Donovan observes, “You don’t seem worried,” Abel shrugs pragmatically, “Would it help?”

It is because of the ruling in Abel’s case that the US now maintains a prison on Cuban soil — in order to avoid giving “enemy combatants” those same rights to representation and a speedy trial.

Before continuing this review, I have to say a word about Rylance, whom many consider the most gifted stage actor today. I am one of them. Liberty readers may recognize him from the TV miniseries Wolf Hall, where he plays Thomas Cromwell. Trained at the Royal Academy of Dramatic Arts and a performer with the Royal Shakespeare Company, Rylance was the founding artistic director of the New Globe Theater and has eclipsed even Kenneth Branagh as the premier Shakespearean actor of our time. But he is also a master of comedy and modern plays. Over the last decade or so he has established a pattern of creating a role for the West End in London and then bringing it to Broadway for the following year. I have seen all those plays, some more than once. He is a brilliant stage actor.

But acting for the stage is different from acting for the screen. On stage, the actor is smaller than the audience; he has to “play large” in order to fill the theater and reach the balcony. Emotions are conveyed with exaggeration and with the whole body, not just the face or the eyes. By contrast, a movie screen is maybe 30 feet high and 70 feet wide. Every twitch of the finger and blink of the eye is magnified, so acting has to be subtle and nuanced. Rylance has not performed in many films, but not to worry. He makes the transition to screen brilliantly.

Several attorneys refuse to defend Abel, worried about how it might affect their reputations and their families’ safety. But Jim Donovan (Tom Hanks) accepts the case. He believes that everyone in America, not just citizens, deserves the same protections under the Constitution, and that “American justice is on trial,” with the whole world watching to see how this foreign spy will be treated. Donovan’s nobility reminds me of Atticus Finch, defending the African-American Tom Robinson despite his community’s outrage and threats. “What makes us Americans?” Donovan asks Agent Hoffman (Scott Shepherd) rhetorically, when Hoffman expects Donovan to violate client-attorney privilege and tell the CIA what he knows. “It’s the rule book — the Constitution. That’s what makes us Americans.” He defends Abel all the way to the Supreme Court. Indeed, it is because of the ruling in Abel’s case that the US now maintains a prison on Cuban soil — in order to avoid giving “enemy combatants” those same rights to representation and a speedy trial.

To my mind, Donovan’s ethics deserve some scrutiny, however. For example, when a young boy asks him why he is defending the spy, he responds, “Because it’s my job,” as though that’s reason enough. But didn’t Nazi soldiers give the same excuse? Donovan also expresses admiration for Abel’s work ethic and steadfastness in not revealing any secrets, calling him “honorable.” And maybe he is. Such fortitude does reveal a strong character. But it also reduces spying to the level of a football game: just do your job, and do it with integrity, and we can all go home admiring one another. But defending a country, an ideology, and a way of life is not the same as defending a goal line, and an enemy is not the same as an opponent.

Meanwhile, the Americans have spies of their own, and they are flying over Russia, taking pictures from 70,000 feet above the earth, using secretly developed camera equipment and a new top-secret plane — the U2. The pilots are told that if they are attacked they must detonate the plane and kill themselves rather than allow the Russians to have the information. Nevertheless, pilot Gary Powers (Austin Stowell) manages to get himself captured, and Donovan is asked to broker a deal to get him home. (For dramatic effect the film gives the impression that these events take place at the same time, but they were actually five years apart.) Donovan’s dogged determination to negotiate the deal so that everyone comes out alive fills the remainder of the film.

Defending a country, an ideology, and a way of life is not the same as defending a goal line, and an enemy is not the same as an opponent.

Despite our knowing the outcome in advance, the tension of the film is relentless, particularly in several exterior scenes set in East Berlin. The Wall is brand new and the German people are desperate to escape. Hungry young Germans surround Donovan like a pack of wolves, while others climb fences or drop from windows into the West in their eagerness to escape. These scenes belie the stance of moral equivalency that Donovan seems to adopt. All things are decidedly not equal between the two superpowers, no matter how honorably Abel conducts himself in maintaining his oath of secrecy.

Another powerful scene occurs as Abel’s trial begins, with a montage that leads from the bailiff’s “All rise” to school children rising to recite the Pledge of Allegiance to the rising of a mushroom cloud in a schoolroom documentary about the atomic bomb. Spielberg has always been an artist, but in this film he surpasses himself. Cinematographer Janusz Kaminski, who also worked with Spielberg in the award-winning WWII films Saving Private Ryan and Schindler’s List, deserves credit for much of the film’s success.

Bridge of Spies is the first film Spielberg has made without John Williams providing the soundtrack since The Color Purple in 1985, and while I’m a fan of Williams’ distinctive style, I think Thomas Newman’s darker tones are more appropriate to this film’s story.

Bridge of Spies is the first of the serious Oscar contenders to be released this year. Hang onto your popcorn — I think it’s going to be a great season.


Editor's Note: Review of "Bridge of Spies," directed by Steven Spielberg. DreamWorks, Fox 2000, Reliant, 2015. 141 minutes.



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Playing the Odds

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In the old days, the mob and similar outfits ran the numbers racket in most of your larger American cities. The numbers racket was simple: you pick a three-digit number, give the guy your money, and, if your number comes up, you get a payoff about 600 times as big as the bet. As the overall payout was around 60%, the mob was sure to get a very respectable return on their end.

I think it was in the ’60s that the government started muscling in. Now it’s called the lottery, but it’s the same racket, except the odds were better when it was the mob running it because they did not feel it was incumbent upon them to withhold income tax.

Oh yeah, and now it’s legal. There is a new game now.

Here’s how it works. You pick a federal law. Any law will do. Then you violate that law. That’s right: you break it. Next, you wait to see whether the government decides that the violation entitles you to a cash payout. If so, you go to the government and provide proof that you violated the law. Then you just fill out the usual numerous forms and, eventually, the government hands you the cash.

A guy I know who likes to crack wise calls it “statutory roulette.” The odds that you will choose the right law to break aren’t particularly good, but it could happen.

Here’s an example.

Let us say it is 2009 and Victor, a guy in Juarez, Mexico, chooses to violate US immigration law by sneaking across the border to Texas. So he sneaks. He finds work, gets married, and, in the fullness of time, has a few kids. He files income taxes, but not with a Social Security Number (SSN), because, as he is what is sometimes called an “illegal alien,” he can’t have one. Instead, he has to use an Individual Taxpayer Identification Number (ITIN). All this time, he stays in Texas. His children, having been born in the US, are automatically US citizens, which is only right. Victor keeps his nose relatively clean. He is not convicted of any felonies or even serious misdemeanors. Things are going pretty good for Victor.

Now it’s called the lottery, but it’s the same racket, except the odds were better when it was the mob running it.

So, as of November 14, 2014, Victor is still “unlawfully present” in the United States when, out of the blue, President Barack Obama approves an executive action that changes everything. The action is called Deferred Action for Parental Accountability (DAPA). And, just like that, Victor is eligible for a three-year deferral of deportation, a work permit, and an SSN.

It is hard to believe, I know, but you can look it up right here.

Here’s the good part. With the SSN, Victor can now refile his taxes for the past three years. And since he has that SSN, he is also retroactively eligible for the Earned Income Tax Credit (EITC). The EITC is a cash grant given to working people with kids. It is available only for people who are not in one of your higher income brackets. Which Victor is definitely not.

So. It seems that Victor is now eligible for a cash payment from the feds of somewhere around six to nine thousand American dollars.

At a Finance Committee hearing, Senator Chuck Grassley of Iowa asked John Koskinen, the IRS Commissioner, whether this EITC thing for people who are in the country illegally is on the level. The IRS guy gave a long-winded answer that somewhat conspicuously did not include the word “no.” The exchange was on the TV. You can watch it here.

Just make sure you keep all the evidence that proves you actually did the crime, or the feds won’t pay up.

The senator couldn’t believe what he was hearing, so he said he wanted an answer in writing. The letter the IRS guy sent the senator is here.

Get the picture? That’s right, straight from the horse’s mouth: Victor is entitled to the dough.

Victor entered the country illegally. He lived in the country illegally. I mean, it wasn’t even legal for him to work here. And now, the federal government is going to give him a many-grand payoff for the time when he was “unlawfully present.” What can I say, Victor? Your number came up.

It is widely known that a reliable way to increase your chance of winning when you play the numbers or the lottery is to bet on more than one number. The more numbers you bet on, the better the odds are that one of your numbers will come up. In much the same way, it stands to reason that to improve your chances of winning in “statutory roulette,” it would be highly advisable for you to violate lots and lots of federal laws. The more of them you break, the better the odds that you’ll break one that ultimately entitles you to a wad of c-notes. Just make sure you keep all the evidence that proves you actually did the crime, or the feds won’t pay up.

Which is only fair.




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Seizing Reform?

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Well, you can knock me over with a spotted owl feather!

Eric Holder — yes, the same leftist hack who has turned the US Attorney General’s office into the Obama Enforcement Mob — has done something for which I commend him.

The Wall Street Journal reports that the Justice Department will stop participating in asset seizures by local police. And it quotes Holder as saying that this move is only “the first step in a comprehensive review” of the feds’ asset-forfeiture program.

Local police have increasingly used the decades-old asset-seizure programs to grab cash and other assets from people in order to augment their own budgets. Asset-forfeiture laws are a powerful tool, allowing police and prosecutors to seize assets from presumed perps without a conviction, or without even a trial — indeed, without even a search warrant.

Police all over the country started to move from seizing the property of mobsters and dope dealers to seizing the property of anyone they suspected of criminality of any kind.

These laws were allegedly created with the good intention of combatting organized crime. The idea was to stop crooks from amassing huge stores of loot that would make it worthwhile for them to risk going to jail. However, seizing their property before any trial conveniently had the further advantage for police and prosecutors of making it hard for these evil criminals to prove their innocence in the courtroom, because they no longer had any money to hire good attorneys!

But, as the cliché rightly has it, the road to hell (or at least prosecutorial tyranny) is paved with good intentions.

Over the years, the feds have increasingly colluded with municipal police agencies to seize assets of presumed bad actors. These actions are called “federally adopted forfeitures.” By partnering with the feds, local cops can keep much more of what they seize than what many state laws allow. In effect, federal adoption allows local agencies to evade state laws. In these seizures, the local cops select a target, seize his assets (cash, cars, boats, jewelry, or whatever else the cops want) on suspicion of violating the law, and then invite the feds to join in. The feds will then liquidate the assets and hand over a major chunk of the money to the cops.

You could have predicted what subsequently happened. As quickly as you can utter the words “perversion of purpose by corrupt cops,” police all over the country started to move from seizing the property of mobsters and dope dealers to seizing the property of anyone they suspected of criminality of any kind — indeed, even if they had no idea what the criminality might be.

This led to an exponentially increasing explosion of seizures from the 1980s on. In the last seven years alone, there have been 55,000 such seizures, with a total booty of $3 billion — a bountiful boon to supposedly cash-strapped local police departments.

This obvious abuse of what was a dubious legal mechanism to begin with has led to a rare convergence of thought among what are normally political opponents — libertarians, modern liberal groups, and conservatives concerned about due process. The ACLU welcomed Holder’s move, as did conservative Sen. Charles Grassley (R-IA). As Grassley put it, “The rule of law ought to be about protecting innocent people. Too often, we’ve seen just the opposite with civil forfeiture laws. The practice up to this point had perverse incentives.”

He added that he wanted to see exactly what Holder plans to do — not an injudicious stance to take, given Holder’s less than stellar performance in office.

The WSJ followed up its report with an editorial approving the Justice Department’s move. It notes that in those cases in which the feds “adopt” a local case, they keep 20% and give the local police the remaining 80%. That’s perverse incentive, indeed. And the Journal quotes data from the estimable Institute for Justice showing that 80% of citizens whose property is seized are never charged with any crime whatsoever.

Forget shows like the old Miami Vice; now the people targeted are mainly small-time operators, not major drug kingpins.

Of course, as the editorial rightly notes, Holder’s action just suspends federal adoptions (as opposed to ending them outright) and exempts the DEA from the suspension (as well as cases of accused child pornographers). Still, as the old saw puts it, when a pig flies, you don’t criticize it for not staying up very long.

Credit for the rising public awareness and disapproval of civil asset forfeiture must in part be given to the Washington Post, which late last year ran an extended expose of the abuses of the program. The piece obviously hit a public nerve — nearly 2,500 comments were posted online. It opens by reporting the existence of a nationwide network of cops who are in competition to see who can expropriate the greatest amounts of citizens’ assets. This private “intelligence network” even has a name: the “Black Asphalt Electronic Networking and Notification System.” It allows cops to post pictures of the loot they have confiscated and to share information about possible targets (names, addresses, social security numbers, and even distinguishing tattoos). One cop (Deputy Roy Hain) unwittingly admitted the true motives for the network when he gloated in a self-published book, “All of our home towns are sitting on a tax-liberating gold mine.” This constitutional scholar boastfully added that we should be “turning our police forces into present-day Robin Hoods.”

Superb idea, deputy! Turn street cops into just another type of hood, liberated to shake down drivers for whatever cash they can grab. How cool!

The Post found that in the nearly 62,000 seizures made since 9/11 without either indictments or even search warrants — seizures that copped $2.5 billion for the cops! — more than half were less than $9,000. In other words, forget shows like the old Miami Vice; now the people targeted are mainly small-time operators, not major drug kingpins.

After rehearsing the evolution of the forfeiture laws in some detail, the Post recounts some of the more outrageous cases of abuse by police of this self-serving power. In one case, Ming Liu, a Chinese-born naturalized US citizen, was stopped on a freeway for doing 10 mph above the posted speed limit — hardly a major crime. Ah, but Liu was carrying $75,000 of his family’s money to buy a Chinese restaurant that they had seen advertised for sale. The deputy who stopped Liu to ticket him asked for permission to search his car. Liu, with a very limited grasp of English, allowed the cop to proceed. The cop then confiscated the cash, later claiming that Liu had given contradictory stories about his plans — which, even if true, probably just reflected Liu’s inability to speak English proficiently. The deputy then hauled the hapless gent into the department’s office and called in the US Customs and Border Protection to adopt the seizure. Hey, the cash prize here was just so sweet!

Mr. Liu hired a lawyer who fought tenaciously and successfully to get the family’s precious capital back, but it still took nearly a year for the cops to disgorge it.

In another case, two Hispanic Americans were driving a rented car on a Virginia freeway when a state trooper stopped them, allegedly for speeding and tailgating. The trooper, one C.L. Murphy, was a member of the Black Asphalt network and a “top trainer” on asset seizing. In other words, the cop was primed to seize. You might say Trooper Murphy pursues his own version of Murphy’s Law.

Over the years, many states have enacted their own forfeiture programs, often with even less oversight than the federal one.

As it happened, the two men he stopped were carrying about $28,000 in cash. Why? They were carrying money donated by their evangelical congregation — of which they were both lay ministers — for the nefarious purpose of buying land in El Salvador for a church. Just the sort of monstrous mobsters from whom the police are hired to protect us!

The men consented to a car search, and Murphy naturally grabbed the cash. He ignored their explanation of why they had the money, offering the usual rationale that he didn’t buy their outrageous story because it contained “inconsistencies.” The men deny his claim.

No matter. The cop called in Immigration and Customs Enforcement (ICE) to adopt the theft — excuse me, the “seizure.” However, to the profound dismay of the cop, his department of “Murphy law enforcement,” and ICE, the men fought back. They forced the ICE-local police mob to forfeit back the whole amount. But it took hiring a lawyer and fighting for months to get it.

A more recent report by Daniel Payne in The Federalist concerns an especially egregious case that occurred in Virginia. A SWAT team — a SWAT tream — was used to break up an unauthorized poker game. Yes, learning that ten guys were playing a friendly game of high-stakes poker, the local (Fairfax VA) cops sent in eight SWAT officers brandishing assault rifles. There was absolutely no evidence that any of the poker players was armed, or that they were posing a threat to anybody. Nor is poker playing itself against Virginia law (it is instead government-controlled).

What reason did the cops give for this threatening intrusion? They said that sometimes poker players have illegal weapons, and sometimes “Asian gangs” will “target” such games. How dare they! Don’t these gangs understand that only the cops should be free to target gamblers?

The real reason the cops acted is that they were able to grab the $200,000 the poker players had, of which they wound up pocketing 40%. That is quite a fine for playing an unauthorized game of poker! As Payne puts it, “Governments control gambling not to legitimize and sanitize the practice, but to extract as much money from the citizenry as they possibly can. In the state’s eyes, the fault of the poker players in Fairfax lay not in betting money on a card game, but in not pouring money into the state’s bank account while they were doing so.”

The capstone of the Post series was an insightful piece by two clearly unbiased experts, John Yoder and Brad Cates, surveying the sorry evolution of the federal asset seizure program from its inception to the present day. And friend, they should know: Yoder headed the Justice Department’s “Asset Forfeiture Office” — yes, there is a whole division of the department devoted to depriving citizens they view as criminals of their property — from 1983 to 1985, and Cates headed it from 1985 to 1989.

Their view is damning. What started as a tool to fight drug lords (and later, mobsters in general), the authors aver, only wound up corrupting prosecutors and police departments. Forfeiture started by targeting the cash put aside by dope dealers, which enabled them to prosper even after completing their jail time. In 1986 the program was expanded to include all assets of the alleged criminals purchased by money that was presumably obtained illegally (money floridly called “the fruit of the tainted tree”). This was expanded by the legislative creation of whole new classes of crimes, such as various types of money-laundering. Over 200 crimes were quickly added to the forfeiture roster.

Yoder and Cates note that over the years, many states have enacted their own forfeiture programs, often with even less oversight than the federal one. And (as noted in the aforementioned WSJ editorial), state and local law enforcement agencies and prosecutors routinely came to use asset seizure to fund their departments. As the authors note, “this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than an even-handed effort to enforce the law.” As they nicely conclude, forfeiture traps are the modern analogs of the old speed traps, since they are programs for selectively taxing individuals targeted on the sly — typically minorities.

Indeed, honest sirs. We have tried in the past to reform this Frankensteinian program that has not only failed to end drug-dealing and organized crime but has turned to attack the citizens it was supposedly designed to protect. The reforms were gutted by a concerted effort of lobbyists for the local police departments. I think it is time to simply end the thing, once and for all.

Forfeiture traps are the modern analogs of the old speed traps, since they are programs for selectively taxing individuals targeted on the sly — typically minorities.

A government surely should have the power to seize the assets of a citizen — but only after that citizen has been found guilty in a court of law, and only as part of appropriate punishment. A court should have the power, upon issuing a warrant or an indictment, to order the defendant not to dispose of, convey, or hide his assets, except to pay for his legal defense. But until some jury (be it criminal or civil) finds the defendant guilty, no government agency should be allowed to take those assets.

In fine, the real poisoned tree is the authoritarian idea that property is completely unrelated to its owner, so is exempt from the presumption of innocence built into our criminal (and civil) system of law. And the fruit of that poisoned tree is and always will be corruption and the abuse of power.

I would hope that such a rule would be made into not just a federal law but a constitutional amendment. Only then will this justice-subverting monster be put to the torch.




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