[I]f you're on that no-fly list, your access to the right to bear arms is cancelled, because you're not part of the American family; you don't deserve that right. There is no right for you if you're on that terrorist list[.]

That was Rahm Emanuel back in 2007. You can watch the video here.

That stupid, un-American and downright evil statement had been (quite properly) dismissed and forgotten, along with most of Emanuel's hyper-partisan, Rovian blather.

Unfortunately, there are plenty of other hyper-partisan, Rovian blatherers:

Citing a "terror gap," Sen. Frank Lautenberg (D-N.J.) … introduced legislation yesterday to give the U.S. attorney general authority to stop the sale of guns or explosives to terrorists.

Just one problem: Lautenberg's proposal does not concern "terrorists," but people on the no-fly list.

Some are quick to point out that the no-fly list (now over one million names and rising) is teeming with false positives — including children, generals and several members of Congress.

True that. But one must go further and ask why there are so many false positives on the list. As I noted elsewhere:

False positives aren't even the issue — true positives are just as problematic.

Suppose for the sake of argument that the no-fly list is constitutional, reasonable and inoffensive to libertarian sensibilities (big assumption, I know).

What Emanuel proposes here is that the (hypothetically appropriate) denial of a privilege (i.e., non-right), without traditional notions of due process (notice and a hearing before a neutral magistrate), be used to bootstrap to the denial of a full-fledged constitutional right (the Second Amendment right to bear arms).

This the Fifth Amendment simply does not allow. Not even close.

Keep this important point in mind as the hyper-partisan Rovian blather continues: This is not a Second Amendment issue — it is a Fifth Amendment issue. Anyone who supports the Lautenberg bill opposes the Fifth Amendment. The Second Amendment is entirely ancillary.

(Lautenberg, fully aware that his proposal is unconstitutional, nevertheless pretends that his plan comports with due process because anyone on the no-fly list can challenge the denial of her Second Amendment rights after the fact. This would be akin to saying that a couple convicted for violating an unconstitutional sodomy statute aren't denied their rights, because they are still entitled to appeal to have the conviction overturned after the fact. That's absurd, of course: Being forced to sue for rights wrongly denied you under an obviously unconstitutional law is still a due process violation. There is, in essence, a right not to have to sue for your rights.)

So I ask again: what happened to that new civil libertarian paradise that Obama and the hyper-liberal Congress were going to usher in?

It's probably in that same alternate reality where DOMA and DADT have already been repealed.

Previously:
–Think Twice Before Ordering a Special Meal
–"Secure Flight" Revisited
–CAPPS II Successor Unveiled
–CAPPS Capsized

Two bills have been introduced so far — S.436 in the Senate and H.R.1076 in the House. Each of the companion bills is titled "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act," or Internet Safety Act.

Each contains the same language: "A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."
…
The legal definition of electronic communication service is "any service which provides to users thereof the ability to send or receive wire or electronic communications." The U.S. Justice Department's position is that any service "that provides others with means of communicating electronically" qualifies.

That sweeps in not just public Wi-Fi access points, but password-protected ones too, and applies to individuals, small businesses, large corporations, libraries, schools, universities, and even government agencies. Voice over IP services may be covered too.

Even the most asymptotic libertarians must recognize the propriety of (basic) child pornography restrictions (since the child cannot validly consent).

But just because a government function is legitimate does not automatically imply that every government action in pursuit of that function is also legitimate. (There was a time, eons ago, when we spoke of laws in furtherance of enumerated powers being "necessary and proper." Alas…)

This proposed Internet SAFETY Act (which will almost certainly die in committee) is the height of government impropriety. Besides the absurdly prohibitive cost — the boring old financial cost — of establishing, implementing and maintaining these records, there is also the cost in terms of the privacy rights regarding the 99.9999% of Internet use that is not "trafficking in kiddie porn." That is a bona fide cost that simply must be weighed against the purported benefits of preventing or punishing such trafficking. It has been settled doctrine, for centuries, that sometimes justice must overlook the guilty in order to protect the innocent.

Compare this nightmarish bill to how we approach government censorship. While few dispute the propriety of not affording First Amendment protection to child pornography, that does not translate into giving government free rein to censor willy-nilly (as Justice Kennard would say) "for the children." The bar is set higher than that — much higher than that.

That is the respect we afford to the First Amendment. The Fourth Amendment deserves no less respect.

(Via Sex Crimes Blawg.)

As the Bush administration enters its final months with no apparent plan to close the Guantánamo Bay camp, an extensive review of the government's military tribunal files suggests that dozens of the roughly 255 prisoners remaining in detention are said by military and intelligence agencies to have been captured with important terrorism suspects, to have connections to top leaders of Al Qaeda or to have other serious terrorism credentials.

Senators John McCain and Barack Obama have said they would close the detention camp, but the review of the government's public files underscores the challenges of fulfilling that promise. The next president will have to contend with sobering intelligence claims against many of the remaining detainees.

"It would be very difficult for a new president to come in and say, 'I don't believe what the C.I.A. is saying about these guys,'" said Daniel Marcus, a Democrat who was general counsel of the 9/11 Commission and held senior positions in the Carter and Clinton administrations.

But none of that is really the point. "Closing Guantanamo" is not synonymous with shutting down the War on Terror. A commitment — which both candidates made — to shut the facility does not imply a lack of commitment to prosecute those who deserve prosecution.

"Closing Guantanamo" is instead about shutting down the paradigm that the facility represents:

• The notion that there can be places on earth where the U.S. government has absolute control but where the Constitution does not apply in any way whatsoever.
• The notion that everyone whom the government detains must be guilty.
• The notion that the U.S. can single-handedly exempt itself from duly enacted treaties, up to and including the Geneva Conventions.
• The notion that torture is ever consistent with American ideals and civilized notions of humane treatment for anyone, no matter how guilty and no matter how evil.
• The notion that barbaric conditions that literally drive detainees to suicide are consistent with American ideals (not to mention the insane suggestion that such suicides constitute an "act of war").

In a post-Bush, post-Boumediene Washington, closing "Guantanamo the Base" (i.e., while merely transferring the remaining detainees to a military prison on U.S. soil, to face a prosecution that comports with due process) is a simple, uncomplicated yet important symbolic step that by itself would represent a tremendous step back from the brink, for it would repudiate, finally, the notion that we as a nation are ever entitled to behave lawlessly.

Previously:
–"Due Process of Law" Quote of the Day
–Guantanamo Suicides "An Act of War"?
–Pentagon: Punish Law Firms Defending Gitmo Prisoners

The program is modeled after one begun three years ago in New York that has withstood legal challenges. However, experts said it is difficult to measure the effectiveness of such searches, beyond assuring the public that police are being vigilant.
…
Checkpoints will be set up at Metro facilities, and passengers will go through inspections before entering a rail station or boarding a bus.
…
Those who refuse to have their bags searched will not be allowed to enter. Transit Police will not arrest people who refuse to have their bags inspected.

In the searches, Transit Police will randomly choose a number, such as 17. Then they will ask every 17th rider with bags to step aside for an inspection before boarding a bus or entering a rail station.

I wrote several blogposts about New York City's program and the (ultimately unsuccessful) litigation challenging it. My thesis, which is entirely applicable to D.C.'s plan, can be summed up rather succinctly:

1. Any inspection regime for a transportation network where a would-be malfeasant can simply turn around, walk away and enter a few moments later at another station (or even another entrance at the same station) is objectively worthless. It has no detection or deterrent effect — absolutely zero.
2. A worthless program is, by definition, unreasonable.
3. Unreasonable searches are explicitly prohibited by the Fourth Amendment.
4. Therefore, any such inspection regime is facially unconstitutional.

The only reason the federal courts upheld New York's program was by embracing a position of unthinking acceptance of completely unsubstantiated assurances from law enforcement and mass transit bureaucrats that "the program works." That's not judicial deference, it's judicial abdication. And it's disgraceful.

The terrorists seek to destroy our way of life. Thanks to programs like this, they are succeeding.

More thoughts from Flex Your Rights, Hit & Run, Cato@Liberty.

—

One ancillary nitpick:

If others are acting suspiciously, Transit Police have the right to stop a person not selected for inspection.

The police, qua police, never have the "right" to do anything. They might have the power (legitimately or illegitimately derived) to act pursuant to their governmental authority, but never the right. Only civilians, qua civilians, can ever have rights.

The federal government and its capital district have no "rights." States have no "rights." Cities have no "rights." Mass transit bureaucracies have no "rights." The police have no "rights." They only have powers — powers that they can and do abuse.

—

Previously:
–Circuit Court Upholds Worthless Subway Searches
–NYC Subway Searches Ruled Constitutional (For Now)
–The Random Searching of Pelham One Two Three
–Subway Searches and Korematsu

Army Lt. Col. Darrel Vandeveld had been appointed the prosecutor for all five cases, but at a pretrial hearing for a sixth detainee earlier this month, he openly criticized the war-crimes trials as unfair. Vandeveld said the military was withholding exculpatory evidence from the defense, and was doing so in other cases.

That's a far cry from this:

They're all terrorists; they're all enemy combatants.

That was former Guantanamo detention center commander, now retired Rear Admiral Harry B. Harris, in December 2006.

This comes on the heels of the outrageous situation with the wrongfully detained Uighurs, not to mention underage detainees and mentally incompetent detainees. And all this while over half of the detainees sent to Guantanamo since its opening have eventually been released or transferred.

And for what? These un-American atrocities have been "balanced" by exactly one conviction — of Osama bin Laden's driver. While President Bush continues to insist that closing Guantanamo is still not an option.

Still, this is not necessarily a vindication for the detainees:

The chief prosecutor at Guantanamo Bay has now appointed new trial teams for the five cases to review all available evidence, coordinate with intelligence agencies and recommend what to do next, a military spokesman, Joseph DellaVedova, said in an e-mail.

DellaVedova said the military might renew the charges against the five later. Clive Stafford Smith, a civilian attorney representing detainee Binyam Mohamed, said he has already been notified that charges against his client would be reinstated.

"Far from being a victory for Mr. Mohamed in his long-running struggle for justice, this is more of the same farce that is Guantanamo," Stafford Smith said.

We spent so much time debating the notion of habeas corpus at Guantanamo, that we forgot other fundamental notions of justice, including the guarantee of a speedy and public trial and the protection against double jeopardy.

The terrorists, who may or may not count these five detainees among them, sought to destroy our way of life. In the context of Guantanamo, they succeeded.

Previously:
–"Due Process of Law" Quote of the Day
–What's Arabic for "Alleged"?
–Guantanamo Suicides "An Act of War"?
–Pentagon: Punish Law Firms Defending Gitmo Prisoners

Yelling homophobic or racist names is free speech protected by the Oregon Constitution if the insults don't lead to violence, Oregon's high court has ruled.

In a unanimous ruling, the Oregon Supreme Court struck down the "abusive speech" provision of the state harassment law that prohibited insulting a person publicly in a way intended to or likely to provoke a violent response.

The problem, the court said, was the Oregon law did not require violence or even the threat of violence in order to ban insulting speech or name calling.

MY TAKE: The case was argued and decided based on the Oregon Constitution, not the First Amendment. But the outcome would have been the same had it been a federal question. The traditional "fighting words" doctrine is all but dead; the test today is whether the speech is likely to incite "imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444 (1969). A random hurling of the n-word or the word-that-rhymes-with-maggot does not, without more, rise to that level and is therefore protected speech. (Oregon v. Johnson, No. SC-S055085, Aug. 14, 2008).

The loss:

On Aug. 4, as local residents prepared for deteriorating weather conditions, Kathryn "Kristi" Fridge made a last-minute stop at the Wal-Mart at FM 1764 and Interstate 45 with her mother and 2-year-old daughter.

Finding the batteries shelf bare, she expressed her displeasure and disbelief to her mother.

"I was like, 'Dang.' I looked at my mom and said, 'They're all f–ing gone," Fridge recalled.

Suddenly, Capt. Alfred Decker, the La Marque assistant fire marshal, appeared from around the corner, dressed in a fire department uniform.

"He said, 'You need to watch your mouth,'" Fridge said.

Fridge walked away, but said the man ordered her to come back. She then protested, telling him she was having a private conversation with her mother that was none of his business. When the man ordered her to come to him and she refused, she said he pulled out his handcuffs.

MY TAKE: My father, a retired police officer, often said that the most powerful person in city government is the fire marshal. They typically have not only a full arrest power, but also the authority to enter and search any premises, at any time, without a warrant. And you know what they say about absolute power.

But this post is dedicated to Voltaire, not Acton, so let us proceed:

State law says the use of abusive, indecent, profane or vulgar language in a public place, which causes an "immediate breach of the peace," meets the definition of disorderly conduct.

That sounds like it might satisfy Brandenburg. Just one problem: It was clearly the marshal who caused the breach of the peace, not Ms. Fridge. A mere fleeting profanity, without more, is simply not "disorderly conduct." First Amendment precedent is unambiguous on this. See especially, Lewis v. New Orleans, 408 U.S. 913 (1972) (merely directing a profanity at an on-duty police officer, without more, is protected speech).

Ms. Fridge says she will seek out a lawyer. She should keep another four-letter word in mind: "ACLU."

(Via Libertarian Lady by way of Hit & Run.)

—

Speaking of wins, losses and rights: Be careful where you play the War on Terror Game —

A War On Terror board game designed in Cambridge [U.K.] has been seized by police who claim the balaclava in the set could be used in a criminal act.

The satirical board game was confiscated along with knives, chisels and bolt cutters, from climate protesters during a series of raids near Kingsnorth power station, in Kent, last week.
…
War on Terror, similar to games like Risk, revolves around creating empires that compete and wage war. … In their cardboard version of realpolitik George Bush's "Axis of Evil" is reduced to a spinner in the middle of the board, which determines which player is designated a terrorist state.

That person then has to wear a balaclava (included in the box set) with the word "Evil" stitched on to it.

The War on Civil Liberties. Whoever wins, we lose.

War on Terror - The Game

Upon winning the election of 1828, Jackson embarked on a transformation of the political system and the Presidency. He sought to advance the cause of democracy, and made an expanded executive power his tool in that great project. To Jackson, democracy meant that the will of the majority should prevail, regardless of existing governmental and social arrangements. Even Jefferson had not gone that far. The Framers designed a government to check and balance majority rule with the Senate, the Electoral College, and an independent judiciary. Jackson followed a different star. "[T]he first principle of our system," Jackson declared in his State of the Union Address, is "that the majority is to govern." He called for a constitutional amendment to eliminate the Electoral College because "[t]o the people belongs the right of electing their Chief Magistrate." The more elected representatives there were, he observed, the more likely the popular will would be frustrated. Jackson remains one of the greatest Presidents because he reconstructed the office into the direct representative of the American people.

Answer here.

(Some reality-based Jackson history here. For those who need help with this post's title, see here.)

On March 14 of this year the House passed an amendment that rejected retroactive immunity for phone carriers who helped the National Security Agency carry out the illegal wiretapping program without proper warrants. Ninety-four House Democrats voted in favor of this measure — rejecting immunity — on March 14, then "changed" to vote in favor of the June 20 House bill — approving immunity.
…
Verizon, AT&T, and Sprint gave PAC contributions averaging:

• $8,359 to each Democrat who changed their position to support immunity for Telcos (94 Dems)
• $4,987 to each Democrat who remained opposed to immunity for Telcos (116 Dems)

…

• $9,659 to each member of the House voting "YES" (105-Dem, 188-Rep)
• $4,810 to each member of the House voting "NO" (128-Dem, 1-Rep)

Of course, those averages represent a huge dispersion: Several senior Democrats, including Steny Hoyer and Rahm Emanuel, received over $25,000. Many junior representatives received little or nothing.

But the dummy variables — "switched vote" and "voted Yes" — appear to be statistically significant, to say the least.

—

My only other thought about the telecom immunity provision is the spuriousness of the argument that the companies might honestly have been unsure of the legality or illegality of the warrantless wiretapping program when they were first (secretly) approached by the federal government. Utter nonsense. These are big companies. Big companies with lawyers on the payroll. Lots of lawyers. Lots and lots and lots of lawyers. They knew full well they were breaking the law. There is absolutely no doubt about that.

(And, as this post demonstrates, they also had politicians on the payroll. Lots and lots and lots of politicians.)

The creation of crimes after the commission of the fact … and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
–Federalist #84

I previously wrote:

To claim that Guantanamo, with all its military accoutrements — its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. — is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.

The Supreme Court ruled:

The United States has maintained complete and uninterrupted control of the bay for over 100 years. … Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.

In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.

—

I previously wrote:

If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

The Court ruled:

Historically, Congress has taken care to avoid suspensions of the writ. … In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," … and from the absence of a saving clause in either Act.

Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA — thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:

It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens — including permanent residents whose children are citizens — that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

That last part was the topic of today's monumental ruling.

And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.

It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.

The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF – 134 pages). Timeline of the Guantanamo cases here.

New York City police detectives and Secret Service agents briefly detained and questioned an artist on Wednesday morning as he installed an exhibition with the title, "The Assassination of Hillary Clinton / The Assassination of Barack Obama."

The artist, Yazmany Arboleda, tried to set up the exhibition in a vacant storefront at 264 West 40th Street in Midtown Manhattan, and had finished stenciling letters of the title on the plate glass windows at street level.
…
"I'm renting that space; the space was allocated for an exhibition, and it's my right to put those words up," he said. "They said it could incite someone to do something crazy, like break the window. It's terrible, because they’re violating my rights. If someone breaks a window, they're committing a crime."

He added: "The exhibition is supposed to be about character assassination. It's philosophical and metaphorical."

The Secret Service seems to have possibly overreacted but in the end respected Mr. Arboleda's First Amendment rights. The same cannot be said for the NYPD:

Speaking to reporters around noon, Police Commissioner Raymond W. Kelly said Mr. Arboleda had been questioned because the police wanted to determine his motives. "Obviously, they could be interpreted as advocating harm to protectees," Mr. Kelly said.

Put aside the pesky facts that (1) "having motives" is not a crime, and (2) "detained" is just a slick way of saying "seized" — as in a Fourth Amendment "seizure." Kelly's final attempt to wiggle off the hook, "could be interpreted as advocating harm to protectees," is also worthless as a rationale for abridging First Amendment rights.

The test for censoring speech based on potential civic disruption is Brandenburg v. Ohio, 395 U.S. 444 (1969), which provides the famous "imminent lawlessness" test:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

That's a far cry from Kelly's "could be interpreted as advocating harm" — failing both the "imminent" and the "likely" prongs of the Brandenburg test. Not to mention that art is generally not considered "advocacy of the use of force or of law violation."

The exhibit display was covered up by the owner of the building Arboleda rented. That is not state action and does not implicate the First Amendment; it is merely a contract dispute. Point conceded. And there may well be little constitutional harm in law enforcement or the Secret Service seeking to question the artist at his convenience. But forcibly detaining an artist, even for "mere" questioning and then applying the wrong constitutional test to the answers generated by such "mere" questioning crosses both Fourth and First Amendment lines that yet again demonstrate that liberty requires eternal vigilance at least as much as does the War on Terror.

—

I am furious at myself for not saving the link, but someone, somewhere, left what may be the best comment ever in reference to this story:

This isn't shouting "Fire!" in a crowded theater — this is yelling "Theater!" in a crowded fire.

Dang, I wish I had thought of that, for there is much truth in it.