Category Archives: dumb laws

Perhaps intelligence committee is a misnomer

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The Constitution of The United States of America is a self-executing document. It does not need permission to grant you your rights, nor does it require a magical incantation to appear and shield you with its protections, as if it were a concoction of a fantasy universe created by a now-very-wealthy female author from England.

But people – many people – with purported intelligence and advanced degrees and those who are presumed to have a basic understanding of these simple facts continue, yet again, to exhibit why we are electing a Congress of fools.

Lawmakers in our nation’s capital – albeit mostly ones with an R next to their name – have made an abrupt about face when it comes to the inviolability of the Constitutional guarantees and have now subjected the rights to a matter of convenience.

House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. “We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

The “this” that he is referring to, is the story that a Magistrate Judge, on Monday, advised Dzhokhar Tsarnaev of his Privilege Against Self-Incrimination at his arraignment [PDF]. We will get to Mike Rogers, who went on to make even more dangerous comments, in a minute. But first some background.

Apparently, the entire Federal Law Enforcement PolitBuro was “surprised” when a “judge and a US attorney” entered the interrogation room. By then, 16 hours had passed, and any semblance of legitimacy for the use of the “public safety exception” in Quarles. The danger of their “surprise” is that law enforcement expected to be able to “interrogate” Tsarnaev indefinitely/longer/for however long they wanted. Because the Constitution explicitly states that these Rightf are Not Enforceable Until At Leaft 48 Hourf Have Paffed And Thou Art Not A Muflim Terrorift. Wait, no it doesn’t? As my buddy Scott Greenfield writes (linked above):

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss. But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Indeed one need only look to this compilation of the changing information of the dangerousness of the two Tsarnaevs to realize that law enforcement’s state goal of “public safety’ was nothing more than an excuse for extraction of information from a U.S. citizen in an extra-judicial manner.

But Rep. Rogers, a former FBI agent, apparently has no such concerns because he’s white not a Muslim.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

A sitting United States Congressman has just stated that the judiciary should not interfere with the administration of law and our rights and that determination of those rights depends entirely on the goodwill of law enforcement agents.

If this were the McCarthy era, or 1984, and I had to give up people I suspected as Communist sympathizers, the first name out of my mouth would be Rep. Mike Rogers of Michigan.

It gets worse.

The revelation about the judge’s role came late Wednesday at a briefing before the House Intelligence Committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official. Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official said.

It came as a surprise to the nation’s lawmakers that it was not law enforcement’s role to intercede in the judiciary doing its job. In other words, something as basic and simple as the separation of powers, the administration of justice and due process elude these people who sit on the “Intelligence Committee”.

Let me repeat: the Constitution is self-executing. The rights exist, whether you like them or not, whether you say the magic words or not. The rights enumerated therein do not require the grace and goodwill of lawmakers like Mike Rogers of Michigan to “activate”. Do you want your Constitutional rights to be subject to the permission of Mike Rogers of Michigan?

Let Jon Stewart take it away:

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A shortcut through your rights

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The Hartford Courant has a whiny editorial complaining that the State’s prosecutors have no investigative subpoena power, which, as I’ve written so many times now, is not even a euphemism for forced interrogations and also a violation of the Fourth Amendment.

It argues that state prosecutors are “relatively toothless”. I suppose relatively is a relative term, but the Editorial makes no effort to tell us what it is relative to. I suppose it is relative to a world in which every citizen is obligated to answer any and all law enforcement questions and turn themselves in for committing crimes lest they be charged with another crime for failing to do that.

But that’s not the world we live in. Prosecutors are handling themselves just fine, thank you, judging by the crushing caseloads of the criminal courts in Connecticut.

All of that, however, I would forgive, if the Editorial did so much as to attempt to explain the standard for conducting these secretive investigations the State wanted: in the interests of justice.

A standard that is more vague and unexplained has not been written. The interests of justice is a moving target, a “we’ll tell you what it means when we decide what it means” standard that changes depending on the case and the subject subject to it.

The prosecutors were testifying in favor of a bill that would open some shortcuts for them in seeking a grand jury capable of issuing subpoenas. That would be progress.

I don’t want the State taking any “shortcuts” through the Constitution. When the State takes “shortcuts”, innocent people end up in jail. But the Editorial Board doesn’t seem too worried. Maybe we can have them be the guinea pigs for this shortcut. In the interests of justice.

[For my previous complaints with the rather naive and uninformed views of the Hartford Courant when it comes to criminal justice matters, see here and here.]

Give an inch and now they’re suggesting forced interrogations

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herr-flick

See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.

“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.

Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:

No person shall be compelled in any criminal case to be a witness against himself

Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.

But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?

Some are suggesting just that, and more. So first Amar, who proposes the following:

The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.

Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.

Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.

His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.

This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.

Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.

I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.

Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.

The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.

The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.

The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.

The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.

Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:

[W]hen the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

And you and me are people they may decide they don’t like anymore.

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.

You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.

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Lest you think the entire world has gone mad, read this post by Greenfield and this roundup at DailyKos for more intelligent reactions.

H/T: InnocentPete

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Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.

The investigative subpoena: because who needs probable cause?

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big_brother

[This is the second in a two-parter today on the State pushing the boundaries of their power and seeking to perform their law enforcement function without the constraints of the Constitution. The first post, on their desire to be free from the Fourth Amendment, is here.]

Prosecutors want the power to subpoena witnesses under threat of contempt penalty to secret proceedings without probable cause.

For many years now – maybe over a decade – the prosecutors in Connecticut have asked every session of the state legislature to “reform” the grand jury process here. By “reform” they merely mean completely revamp and retool it, giving themselves vast powers to subpoena any manner of things with minimal judicial oversight.

But first, to understand the scope of this request, we must understand that Connecticut is not an indicting grand jury state; not typically, at least. Almost all of our charging is done via the information: the grand jury indictment was abolished in the 80s. This OLR report has all the background and information you’ll ever need on the grand jury in Connecticut.

What this means is that the decision to arrest people of crimes and to charge them with crimes is made based on probable cause – that requirement enshrined in both the United States and State constitutions. Either you get an arrest warrant signed by a neutral judge, based on probable cause, or you arrest someone and then a neutral judge makes a finding that there is probable cause to believe that the person arrested committed the crime.

Out of the 50 states, only half actually use grand juries and out of those, only 22 require their use. [Here is an informative ABA article on grand juries.] Most of these grand juries investigate the commission of crimes and are composed of lay people, but some states have other types of juries like civil grand juries, which aren’t involved in the criminal investigative process.

The indicting grand jury as you imagine it – held in secret, where a ham sandwich can get indicted – was abolished precisely because it was so secretive and its ex parte nature. Several amendments to the statutes and the State Constitution established our current system. The vast majority of criminal cases are brought by employing the method I’ve described above and a very, very small class of crimes are still via grand jury:

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State to establish dangerous weapon offender registry

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You knew it was going to happen. It was just a matter of time. Doesn’t matter that we weren’t the first state to rush to pass gun control laws, as long as we’re the one with the best laws. And having the best laws means having the toughest laws and having the toughest laws not only means heavy regulation but also By-God-We’re-Going-To-Punish-The-Hell-Out-Of-You.

And so here we are. Along with bans on high capacity magazines and universal background checks, we also have “the nation’s first statewide dangerous weapon offender registry”. An idea that Senate Majority Leader Martin Looney has proposed before (here‘s a 2011 Courant article on that proposal), the registry requires that:

[I]ndividuals must register with DESPP if they have been convicted of any of more than 40 enumerated weapons offenses (mostly gun offenses) or another felony that the court makes a finding involved the use or threatened use of a deadly weapon.

Individuals must register with DESPP for a total of five years after their release into the community. During that time they must keep their registration address current at all times, and they must check in once per year, on the anniversary of their release, with local law enforcement in the town where they currently reside. Unlike Megan’s List, this registry will not be public. Instead, it will be available to law enforcement only.

In addition, this mega compromise super-awesome-best-in-the-world-bill naturally also “significantly increases penalties for many firearms trafficking and illegal possession offenses.” Of course it does.

These provisions will do nothing to stop another Adam Lanza. These provisions won’t affect James Holmes.

What they will do is further oppress an already oppressed segment of society. Now poor black and Hispanic defendants will have two more procedural hurdles to jump through and more opportunities to commit crimes.

So why not just take everyone who’s committed a crime and make them register somewhere with some agency. And we’ll make them undergo some rigorous testing when they’re released, so we can probe them and see if they’re doing the right thing. Maybe we can call it, hmm, let’s see, probe…probate…probation! Yes. Probation. And when they’re on probation they have to report to an officer of some sort. Someone who keeps tabs on them. Let’s see. What shall we call this Officer of Probation? Okay, nevermind, we can come back to that.

What’s that? We do that already? Oh. But what’s one more registration requirement, right? I mean, all of our other registries are working so wel-oh, wait.

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Also included in the bill are a bunch of mental health provisions. Because now apparently the mantra is that people don’t kill people, but mentally ill people use guns to kill people. Whatever.

If you accept that flawed premise as the root cause of all gun-related evil (as has been bandied about by many since the mass shootings of the past few years); that these are mentally ill people who are committing crimes and of course no sane law abiding citizen would ever use a gun in an unlawful manner (of course they wouldn’t; once they do they aren’t law abiding anymore), then the question becomes, what to do with those that are mentally ill and thus predisposed to crime? Or are criminals mentally ill because only mentally ill people commit crimes with guns? And if we have such a large gun problem, that means that there are many people who are mentally ill, correct?

The truth, of course, is that some mentally ill people commit crimes, some sane people commit crimes, some mentally ill people don’t commit crimes and some sane people don’t commit crimes. What’s also true is that our prisons are filled with people who did commit crimes because they are mentally ill and there are zero options available to treat and assist them and prevent them from re-offending. Putting them on a fucking list isn’t going to solve anything.

So what’s plainly missing from these “mental health provisions” is any mention of mental illness among the prison population and the taking of any steps to address that huge neglected problem. At least a quarter of all inmates have mental illnesses and in a society where there are fewer and fewer resources being assigned to diagnose and treat those mental illnesses, any bill that proposes to make mental health reforms but doesn’t so much as mention the incarcerated population (in a bill that is all about criminals and criminalizing conduct, no less, wtf, is this crazy season?) is a joke.

WAIT. It’s April Fool’s Day today, right? That’s got to be it. That’s the only explanation. Whew. Good one, Connecticut legislature.

The Mercy Project

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It takes a lot for a judge to look a defendant in the eye, while sending that person to jail for 15 years, and say “This is one case where the guidelines work an injustice, and I’d like to do something about it but I can’t”. It’s a staggering admission by a sitting judge that his hands are tied by a legislature and a Congress that can’t see beyond the headlines they want to generate.

Mandatory sentences are reviled by judges and defense attorneys; prosecutors secretly love them and the pitchfork public revel in them. And people’s lives are ruined under their aegis. Mandatory sentences are the single most dehumanizing feature of the criminal justice system: it is the explicit admission that the system is stripping people of their individuality and instead treating them as cattle, with numbers branded upon their chest.

Robbed a bank to feed your starving child? Doesn’t matter. Found a little bit of crack on your person? Treated like a kingpin. It’s a one-size fits all approach that has led to gross inequalities, most notably in the crack-powder cocaine scenario. Thousands of people were caught in drug sweeps in the 80s and 90s and thanks to these mandatory sentences, banished to jail for extraordinarily long periods of time.

Like Denise Dallaire.

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