Archive for January, 2001

Parting Gifts

Sunday, January 28th, 2001

If you are the kind of person who enjoys waxing indignant about corrupt behavior or shamelessness, Bill Clinton is certainly the gift that keeps on giving. For most, Clinton is like the recalcitrant party guest who is oblivious to hints and insists on staying a little longer than welcome. In the case of the transition of presidential power between Clinton and George W. Bush, Clinton is more like the party guest who not only outstays his welcome, but also feels entitled to depart with a few souvenirs.

Consider the last few weeks:

  • Clinton entered a deal with Special Prosecutor Robert Ray to avoid prosecution. He admitted to knowingly giving false testimony. Within hours his spin meisters were claiming that Clinton did not really admit to lying.
  • Federal law prohibits executive branch officials from lobbying their agencies for one year after leaving office. When Clinton came into office in 1992, he extended this period to five years by executive order. This provided two benefits. He kept former Bush officials from lobbying and secured the moral high ground. Now at the end of his term, Clinton rescinded the order, allowing former Clinton officials to engage in the same lobbying he prohibited to ex-Bush officials.
  • On George W. Bush’s Inauguration Day, Clinton tried to steal reflected limelight and bask in the trappings of office a little longer by giving two televised farewell speeches, one in Washington and one in New York. He also arranged for a Saturday radio address on Inauguration Day. This behavior is the moral equivalent of grasping onto the White House door as Constitutional circumstances pulled him away.
  • In his last night in office, Clinton issued a blizzard of pardons and clemencies, a third of which had never been formally reviewed by the Justice Department. The pardons included Marc Rich, a multi-millionaire who is accused of conspiracy, tax evasion and racketeering and even trading with Iran while they were holding US citizens as hostages in the late 1970s. Rather than face charges in court, Rich fled and has spent the years in luxury in Switzerland. The pardon has been criticized even by Clinton supporters, especially since it appears the pardon may have been a repayment for $1.1 million in donations to the Democratic Party by Rich’s ex-wife in the United States.
  • Four Hasidic Jews were convicted of cheating the federal government of $40 million. The usually conservative Hasidic vote in Rockland County, the home of the convicts, voted nearly unanimously for Hillary Clinton in her successful run for Senate, after which the pardons were issued.
  • In the last week, it has become apparent that the Clintons have ridden into the sunset with nearly $200,000 in house furnishings, china, and flatware donated to the Clintons in the last year. People knew what items to contribute because the Clintons registered what they needed. The booty even includes some furnishings donated by the Richs.

Clinton is not directly responsible for those who serve him, but his example cannot help but be noticed by those who look to him for leadership. The new President Bush dispatched the jet normally used as Air Force One to ferry Clinton and his party to New York. According to yet to be confirmed reports, this graciousness was repaid by members of the Clinton party with the petty theft of items from saltshakers to china marked with the presidential seal. In the offices of the Executive Office Building, ex-staffers engaged in everything from the charming prank of removing W‘s from computer keyboards to apparent vandalism.

The actions of Clinton and his minions over the last week are perhaps unintentionally the best gifts that could have been presented to George W. Bush in his first week as President. In the immediate juxtaposition of the comportment of Clinton and Bush, Bush’s star rises. Clinton’s tawdry behavior made it seem that this last week a mature adult was taking over the presidency from a clever, but narcissistic adolescent. As people remember what it is like to have a President whose character one can respect, they will wonder why they were ever satisfied with less.

How an Attorney General Enforces the Law

Sunday, January 21st, 2001

Harry Beck was a telephone linesman and a member of the Communication Workers of America Union. If he wanted to be a linesman he really had little choice about membership. If you want to be a linesman, you are compelled to pay union dues. Beck, however, was displeased that part of his dues were used for union political activities — contributions to candidates and lobbying for legislation.

With the support of the National Right to Work Foundation, Beck sued his union and the suit ultimately wound its way to the US Supreme Court. In 1988, that court ruled that Beck’s First Amendment right to free association precluded the Communications Workers of America from, in effect, compelling Beck to support political activities. Workers who are compelled to pay union dues, the court said, are free to withhold that portion of the dues devoted to political activity.

Belatedly in 1992, George H. Bush issued executive order 12800. The order required federal contractors to post in a conspicuous place worker rights under the Beck decision. When Bill Clinton became president, he wasted little time. In February 1993, Clinton paid back union support and withdrew the executive order. The decision in Beck versus Communication Workers of America is the law of the land, but Clinton was in no frame of mind to enthusiastically pursue enforcement. Free association rights for union workers were not a priority for the Clinton administration.

The focus here is not on the wisdom or folly of the Beck decision. Rather, it is to place in context the derisive question conjured up by Democrats as to whether John Ashcroft will enforce the law as US attorney general. Of course, he will enforce the law, but the question is ill-posed and not particularly illuminating. Then again, the purpose of the question was not to shed light but rather to paint a picture of darkness.

Attorneys general, like all prosecutors save independent counsels, have finite time and funding. They must, therefore, set priorities in the application of those resources. This is a good thing. Who would enjoy a society overseen by prosecutors with unlimited resources rigorously enforcing laws without the necessity to exercise judgment.

Reasonable people can disagree as to the best apportionment of resources for pursuing violent or white-collar crime. However, the selection of these priorities is a reflection of the values and standards of an administration. How much effort is devoted to enforcement of environmental regulations, organized crime, or anti-trust laws is a measure of where an administration believes the nation’s problems lie.

It is a safe bet that George W. Bush and his attorney general will devote fewer resources to raiding the compounds of religious cultists, storming Miami homes at gunpoint in search of young illegal Cubans, and seeking out and eradicating instances of possible federal aid to Boy Scouts. Squandering prosecutorial resources dissipates the moral authority of an administration. The sage and thoughtful enforcement of the law, by contrast, can help define an administration and reinforce and support its legislative initiatives.

For example, it is a melancholy fact that a large number of African-Americans are concerned that Bush’s aversion to a racial spoils system and race-based preferences will undermine the ladder to educational and employment success. The Bush position imposes an additional moral burden to aggressively enforce anti-discrimination laws. Vigorous enforcement of equal protection laws can validate the Bush claim to be a uniter.

Bush is also unconvinced of the efficacy and legality of the proliferation of laws restricting the Second Amendment freedom to bear arms. If Bush believes that such laws unreasonably constrain law-abiding citizens, he is under an additional obligation to prosecute and jail those convicted of using a gun in the commission of a crime. Again priorities in enforcement define an administration’s vision.

Some Democratic Senators in the Ashcroft confirmation hearings were so bent on angrily satisfying their core constituencies that they failed to ask the real and important questions. Rather than asking Ashcroft if he will enforce the law, they should have asked about his priorities in enforcement.

Prying Eyes

Sunday, January 14th, 2001

One of the problems with the nation’s war on drugs is that it has sometimes degenerated into a war on the Fourth Amendment’s guarantees from unreasonable searches. Since drug use and sometimes drug sales largely involve private activities conducted behind closed doors between consenting parties, there is an incentive for law enforcement activities to push the envelope of permissible searches. Given the legitimate and reasonable public enthusiasm for discouraging drug use, there is also a strong incentive for courts to allow the fabric of the Fourth Amendment to fray a little at the edges. In a case scheduled for oral argument on February 20, 2001, the US Supreme Court will have an opportunity to keep a snag from unraveling.

The formerly married couple Danny and Luanne Kyllo resided in one unit of a triplex in Florence, Oregon. Luanne had been arrested in late 1991 for the “delivery and possession of a controlled substance.” An informant further suggested to law enforcement authorities that Luanne was a source of marijuana. There was, therefore, plenty of reason for the police to be suspicious of the couple.

As part of the investigation, the utility records of the couple were subpoenaed from the power company. These records suggested disproportionately high energy usage by the Kyllo’s unit of the triplex. Excessive energy usage could be indicative of high-energy lamps used in the indoor cultivation of marijuana. While it is possible to conjure up alternative explanations for this energy usage, the clues gathered would certainly be ample enough for competent law enforcement officials to pursue the case.

At 3:20 am in the morning of January 16, 1992, a federal drug task force enlisted the help of the Oregon National Guard and their Agema Thermovision 210. This thermal imaging device produces an image that maps the emission of thermal radiation. In this case, the image indicated an unusually high level of thermal energy emitting from one wall of the Kyllo house. One the basis of this information, a federal magistrate granted a search warrant, a search ensued, and suspicions were confirmed. The indoor marijuana cultivation setup was discovered and the Kyllos were arrested and convicted.

The question before the US Supreme Court is the legality of the warrantless use of the thermal imaging device. If the police had gone to a magistrate with the high energy bills in hand and the information from the informants, they probably could have obtained a warrant to use the imaging device. However, the authorities neglected to do this.

Danny Kyllo argues that the use of the thermal imaging device constitutes an unreasonable search and the evidence from the sensor, evidence that was used to obtained a subsequent warrant for a physical search, should be thrown out. If the use of the thermal imaging device does constitute an illegal search, Kyllo’s conviction would be overturned.

The test in this case, according to the 9th Circuit Court, is whether Kyllo had a reasonable expectation of privacy or whether the use of a thermal imaging device constitutes general police observation. Kyllo argues that since the cultivation was moved indoors, he had a reason to believe the cultivation was done in private.

The Circuit Court ruled that “thermal imaging technology in this case does not constitute a search under Fourth Amendment standards” because the imaging device “did not literally or figuratively penetrate the walls of the Kyllo residence to expose this activity.” Further it ruled that merely transferring marijuana cultivation indoors does not mean that Kyllo had a reasonable expectation of privacy. He had no such expectation in the Circuit Court’s view because “he took no affirmative action to conceal waste heat.”

This decision is troubling. Does it imply that as police surveillance technology increases, the normal expectation of privacy within the home decreases unless one becomes aware of these technologies and takes active measures to devise additional barriers to observation? A person could not read a document in my hand from the street, but a person with a telescope might be able to. Am I protected from a telescope search without a warrant? A person from the street cannot hear a conversation in my house. Sensitive sound amplification equipment might allow law enforcement officers to listen in on conversations assumed to be private. Is a citizen required to play background music to prevent such monitoring before that citizen can expect a conversation to be private? If I encrypt an e-mail message, does that action mean that I have a reasonable expectation of privacy for that message? What happens if decryption technology improves? Does a citizen have to continually improve encryption to maintain the expectation of privacy in a measure versus countermeasure spiral?

Judge Michael Hawkins of the 9th Circuit Court wrote, “Whatever its Start Wars capabilities, the thermal imaging device employed here intruded into nothingÂ… Rather it measured the heat emanating from and on the outside of the house.” Such a distinction lacks understanding. If the police used a high powered telescope to look through a window, I am sure we would all believe that our expectation of privacy had been broached even though the “imaging device employed here intruded into nothing.” We would not be consoled by the fact that the sensor only measured multi-spectral radiation emanating from the house.

During the arguments before the Circuit Court, attorneys pointed out that even more sophisticated thermal imaging devices would be able to detect sexual activity within a house. I suppose one could secure a reasonable expectation of privacy by carrying on such activities behind blankets of high thermal absorption, but how many people are concerned about such technological matters at such times?

The Circuit Court dismissed such concerns in this case because the imaging resolution was not sufficient to expose detailed activities behind closed doors. This could be a reasonable distinction, but no guidance is offered as to how detailed such passive observations must be before they constitute a search. Are imaging devices different from non-imaging ones? How are audio surveillance technologies to be treated?

The Fourth Amendment presupposes that in some cases people want to be left alone out of the constant observation of the state or the public. Who wants a society where we are constantly gazing over our shoulders to see who is watching us? Who wants to live in a society where private citizens have to resort to greater and greater precautions to avoid the prying of new technologies?

Let me respectfully suggest that if the Conservatives on the Supreme Court really wish to adhere to the doctrine of “original understanding” they should ask themselves how much intrusion into the activities on their private premises the Founders would have tolerated. Drug use creates enough victims by itself. We do not need to add to this list of victims the Fourth Amendment.


Unsolicited Advice

Sunday, January 7th, 2001

In the latest presidential election, Republican George Bush managed to persuade less than 10% of African-Americans to vote for him. If you believe some of the silly Democratic rhetoric from partisans in Florida, you might be inclined to conclude the Al Gore would have garnered an even larger percentage from this community if the ballots were not so confusing.

The truth is that African-Americans are as culturally and economically diverse as other groups in America. There are married and single black Americans. Some are elderly and some are young. Some are wealthy, while others struggle economically. Some are religious. Some are secular in outlook. Some reside in urban areas, while others live in the suburbs or in rural parts of the country. Some African-Americans are robustly healthy, while others suffer from chronic illness. Some are well educated having earned professional and graduate degrees. Others are burdened by illiteracy. African-Americans occupy virtually all niches in American society.

How then it is possible that there is such uncanny unanimity in voting patterns that is inconsistent with the wide diversity of circumstances for black Americans? Some how racial identity and solidarity have been made to trump the differences of economic and cultural circumstances. While African-Americans still share the experience of some measure of discrimination, this alone seems insufficient to account for current voting patterns. By any objective consideration, George Bush extended more of a welcoming hand to the African-American community than other Republicans candidates who received a significantly larger fraction of the African-American vote.

The truth is that some leaders in the black community now have a symbiotic political relationship with the Democratic Party. Commercials sponsored by the National Association for the Advancement of Colored People (NAACP) are an example of this relationship. They suggested that George Bush was somehow complicit in the brutal slaying of a black man who was dragged behind a pickup truck in Texas. So long as certain black leaders are the dominant intermediaries for the black community, Republicans will not be able to garner increased support.

It is not healthy for a two-party political system for one racial group to be so closely identified with only one party. In actuality, the strong support by blacks for Democrats reveals an important vulnerability. Excluding the black population, Republicans generally receive a significant majority of the vote. It is hard to imagine Democrats being able to increase their support from the black community. Not even union members vote for Democrats in such overwhelming percentages. On the other hand, if Republicans were able to make in roads in the African-American vote, it could severely undermine the Democratic coalition.

Here is some unsolicited advice to President George W. Bush as he embarks on his administration.

  1. Do not be discouraged by the lack of black support and do not write off this important group. Try to go over the heads of Democratic black political leaders, by visiting directly with blacks in their own communities. Listen to problems and explain your vision of how to deal with these problems.
  2. Empower the African-American community and wean them from a perceived dependence on the generosity of the Democratic Party. One important way to do this is to take advantage of the support in the urban black community for school choice. Bush should make sure that any implementation of school choice should be focused first on underprivileged communities. School choice would not only improve education is such communities, but would have a concomitant advantage of driving a wedge between the Democratic Party and the everyday black community.
  3. Within in the African-American community churches are very important. It is out of these churches and church leaders that much of the civil rights movement began and is nurtured. Moreover, these churches provide important social services within their communities. George Bush should clear the way for government-financed provision of social services by faith-based institutions. Again, there are two advantages. Faith-based institutions have a good record of providing cost-effective and successful social services. In addition, such policy initiatives by Bush would separate black Americans from the largely secular and some cases anti-religious leftists in the Democratic Party.

During the Congressional session when Bush’s election was officially certified, California Democratic Congresswoman and African-American Maxine Waters objected to the submission of electoral votes for Bush from Florida. Al Gore chaired the session and asked Representative Waters whether she had the objection in writing signed by a member of both the House and Senate. Representative Waters responded that the objection was in writing and, she added, “I don’t care that it is not signed by a senator.” The key for George Bush is to show that he cares, unlike Representative Waters, for both the provisions of the Constitution and the economic and cultural success of all Americans.