Saturday, September 19, 2009

#1 Lesson from the Obama Administration: Don't Trust a Politician

Politicians exist to be elected and to maintain their power once they have been. At no point do honesty, empirical reality, or human rights play into this, and when they do, it's a less than secondary concern.

The way pragmatic political concerns override principle is made perfectly clear by the gradual revelation that on policy, Barack Obama is far from progressive, particularly on matters of civil liberties. Of course, to most independent observers, this was already fairly apparent. Advocates for civil liberties, accountability, and the rule of law expressed their dismay in 2008 when then Senator Obama voted to grant retroactive immunity to telecommunications companies complicit in warrantless wiretapping. Anarcho-syndicalist activist Noam Chomsky advised that left libertarians, progressives, and liberals "vote Obama, but without delusions." He pointed out that while Obama was clearly better than McCain, his approach was full of rhetoric onto which we could project our hopes, but largely bereft of substance, particularly on matters such as American imperialism, accountability, and other matters on which our political status quo is rotten to the core.

However, not all progressives were so suitably cynical. I witnessed delighted and ecstatic excitement among many of my liberal friends upon his election, and even I was admittedly overjoyed to see the end of the Bush regime.

Since the election, the value of cynicism has been confirmed many times over. Whether on drug policy, rendition, torture, transparency, or military action, he has been simply Bush lite. He removed some of the more grievous injustices of Bush Administration policy, but still maintained their primary distinguishing substance of statist lawlessness.

President Obama promised the most transparent presidency in the history of the United States of America. This was decidedly not what he delivered. While I could cite innumerable examples of this, I will for the sake of concision cite only one. I'll let the Center for Responsibility and Ethics in Washington explain.

"The Obama administration has now taken exactly the same position as the Bush administration, telling us the visitor logs are presidential records," said Anne Weismann, the legal counsel for CREW. "I don't see how you can keep people from knowing who visits the White House and adhere to a policy of openness and transparency. The discrepancy between the rhetoric and the policy is especially great."

The White House attempted to provide excuses, even going so far as to claim in classic Orwellian form that their secrecy was meant to maintain openness.

Asked about the issue by reporters, White House press secretary Robert Gibbs said today that the administration's policy regarding the release of the logs is under review.

"The policy -- as you know, and I think many of you know, this has involved -- visitor logs have been involved in some litigation dating back to sometime in 2006," Gibbs said. "The White House is reviewing that policy based on some of that litigation."

Gibbs declined to say when the review would be completed, but said it is being conducted by the White House counsel's office and "other people."

"The goal is, and I think the president underscored his commitment to transparency on his first full day in office," Gibbs said. "This is not a contest between this administration or that administration or any administration. It's to uphold the principle of open government."

Ed Brayton responded with facts and solid libertarian principles.

If the goal is to uphold the principle of open government, the documents would have been turned over. The response from the administration to the FOIA request repeats that they are taking the exact same position Bush did, that visitor logs are "presidential records" rather than "agency records" and therefore exempt from FOIA.

And while the administration notes that this issue is currently a matter of litigation, it does not note that a federal judge has already ruled on the issue and said that those visitor logs are public records and must be made public under FOIA. That ruling is being appealed and the Obama administration is taking the same position that Bush did. This isn't a matter of it being "under review," the Obama administration has already declared its position in that court case.

On his first day in office, Obama issued an executive order that agencies must process FOIA requests with a focus on more transparency and accountability. His actions since then, however, show just how empty those orders were.

Similarly, while President Obama did (and still does) hold the incoherent position that we should "look forward" rather than prosecuting the grievous crimes of the Bush Administration, he did promise to restore due process and human rights to US policy on terrorism. This too proved to be a particularly empty promise.

For instance, rather than simply refusing to act to bring accountability for torture, the Obama Administration actively attempted to suppress information on it, by threatening to undermine the security of British citizens. Glenn Greenwald explains the case as follows.

Ever since he was released from Guantanamo in February after six years of due-process-less detention and brutal torture, Binyam Mohamed has been attempting to obtain justice for what was done to him. But his torturers have been continuously protected, and Mohamed's quest for a day in court repeatedly thwarted, by one individual: Barack Obama. Today, there is new and graphic evidence of just how far the Obama administration is going to prevent evidence of the Bush administration's torture program from becoming public.

In February, Obama's DOJ demanded dismissal of Mohamed's lawsuit against the company which helped "render" him to be tortured on the ground that national security would be harmed if the lawsuit continued. Then, after a British High Court ruled that there was credible evidence that Mohamed was subjected to brutal torture and was entitled to obtain evidence in the possession of the British government which detailed the CIA's treatment of Mohamed, and after a formal police inquiry began into allegations that British agents collaborated in his torture, the British government cited threats from the U.S. government that it would no longer engage in intelligence-sharing with Britain -- i.e., it would no longer pass on information about terrorist threats aimed at British citizens -- if the British court disclosed the facts of Mohamed's torture.

For the complete odious details of this threat, one can read excerpts of the letters sent by the administration to the British court.

Further, in addition to covering for past misdeeds, Obama continues policies of rendition, in which prisoners may be sent to secret prisons overseas, generally in countries where abusive methods such as torture can more easily occur. While the administration states that they will attempt to curtail abuse and torture, it remains a violation of habeas corpus and due process rights.

I could continue, but this post is fundamentally not about Obama. This is about why it is fallacious to trust politicians. Regardless of the eloquence of their speeches, their history of intellect and organizing, or any other points in their favor, they will act in their self interest for reelection and maintaining their power. Thus, the only rational approach is to treat them with cynical skepticism and scrutinize all of their policies, rather than "trusting" them, regardless of how much we may like them and support the plans they mention.

Regardless of their intentions or personalities, the filthiness of politics and power permeates the policies of every politician to some degree, and as George Orwell pointed out, "politics itself is a mass of lies, evasions, folly, hatred and schizophrenia."

Gun Control: A Left Libertarian Critique

Let me first make something perfectly clear: I don't like guns. I am a pacifist with poor motor skills who sees firearms as antithetical to my values and an item with which I would likely be incompetent anyway. That being said, I oppose strict gun control measures, both on empirically based pragmatic grounds and left libertarian concerns.

First, as an empiricist and skeptic, I must consider what scientific studies and empirical evidence suggest regarding the effectiveness of gun control policies at achieving their goals. Generally, the goal of a gun control measure is to decrease rates of violent crime.

One of the most extensive studies of effectiveness of gun control in curtailing violent crime was performed by John Lott, a law professor at the University of Chicago. Specifically, his study dealt with the legality and prevalence of concealed handgun use. The findings: An inverse correlation between prevalence of concealed handguns and rates of violent crimes. A brief explanation by Lott of his findings is available here.

One finding which should be of particular interest to liberals, considering our devotion to fighting violence against women, is that the correlation is more pronounced when we consider violent crimes against women. Lott explains this as follows:

Concealed handguns also appear to help women more than men. Murder rates decline when either sex carries more guns, but the effect is especially pronounced when women are considered separately. An additional woman carrying a concealed handgun reduces the murder rate for women by about three to four times more than an additional armed man reduces the murder rate for men. Victims of violent crime are generally physically weaker than the criminals who prey on them. Allowing a woman to defend herself with a concealed handgun makes a larger difference in her ability to defend herself than the change created by providing a man with a handgun. Guns are the great equalizer between the weak and the vicious. At the Democratic convention, President Clinton played up his proposed expansion of the 1994 Brady Law, which by making it harder for men convicted of domestic violence to obtain guns is designed to reduce crime against women. Our study is the first to provide direct empirical evidence of the Brady Law's effect on crime rates and we found just the opposite result: The law's implementation is associated with more aggravated assaults and rapes. Mrs. Brady's exaggerated estimates of the number of felons denied access to guns are a poor measure of the law's impact on crime rates.

Moving beyond sheer matters of effectiveness, the various logical arguments my fellow left libertarians use against drug prohibition may also apply to gun control. Noted anarcho-capitalist and libertarian economist Murray Rothbard, in his book For a New Liberty, summarized the excellent arguments by St. Louis University law professor Don B. Kates, Jr. for why liberals should oppose gun control.

In a notable article attacking control of handguns (the type of gun liberals most want to restrict), St. Louis University law professor Don B. Kates, Jr., chides his fellow liberals for not applying the same logic to guns that they use for marijuana laws. Thus, he points out that there are over fifty million handgun owners in America today, and that, based on polls and past experience, from two-thirds to over eighty percent of Americans would fail to comply with a ban on handguns. The inevitable result, as in the case of sex and marijuana laws, would be harsh penalties and yet highly selective enforcement — breeding disrespect for the law and law enforcement agencies. And the law would be enforced selectively against those people whom the authorities didn't like: "Enforcement becomes progressively more haphazard until at last the laws are used only against those who are unpopular with the police. We hardly need to be reminded of the odious search and seizure tactics police and government agents have often resorted to in order to trap [p. 116] violators of these laws." Kates adds that "if these arguments seem familiar, it is probably because they parallel the standard liberal argument against pot laws."7

Kates then adds a highly perceptive insight into this curious liberal blind spot. For:

Gun prohibition is the brainchild of white middle-class liberals who are oblivious to the situation of poor and minority people living in areas where the police have given up on crime control. Such liberals weren't upset about marijuana laws, either, in the fifties when the busts were confined to the ghettos. Secure in well-policed suburbs or high-security apartments guarded by Pinkertons (whom no one proposes to disarm), the oblivious liberal derides gun ownership as "an anachronism from the Old West."8

Kates further points out the demonstrated empirical value of self-defense armed with guns; in Chicago, for example, armed civilians justifiably killed three times as many violent criminals in the past five years as did the police. And, in a study of several hundred violent confrontations with criminals, Kates found the armed civilians to be more successful than the police: the civilians defending themselves captured, wounded, killed, or scared off criminals in 75% of the confrontations, whereas the police only had a 61% success rate. It is true that victims who resist robbery are more likely to be injured than those who remain passive. But Kates points out neglected qualifiers: (1) that resistance without a gun has been twice as hazardous to the victim than resistance with one, and (2) that the choice of resistance is up to the victim and his circumstances and values.

Avoiding injury will be paramount to a white, liberal academic with a comfortable bank account. It will necessarily be less important to the casual laborer or welfare recipient who is being robbed of the wherewithal to support his family [p. 117] for a month — or to a black shopkeeper who can't get robbery insurance and will be literally run out of business by successive robberies.

And the 1975 national survey of handgun owners by the Decision Making Information organization found that the leading subgroups who own a gun only for self-defense include blacks, the lowest income groups, and senior citizens. "These are the people," Kates eloquently warns, "it is proposed we jail because they insist on keeping the only protection available for their families in areas in which the police have given up."9

Gun control is a matter in which I must break with the statism proferred by many on the left, including those whose commentary I usually enjoy, such as self proclaimed "libertarian" Bill Maher, who has come out in support of stricter gun control laws.

The Supreme Court Takes on Asset Forfeiture

As usual, there are some Supreme Court cases going on at the moment of great interest to me.

First and foremost, we have Alvarez v. Smith, on which Radley Balko over at Reason Magazine has written an excellent article. The case addresses the constitutionality of the asset forfeiture laws in place in Illinois. The contentious element of asset forfeiture is that it permits police to sieze property under the pretense that it was gained by illegal means, without need of a warrant or even charging the the property owner with a crime. As SCOTUS Wiki puts it, the case discusses "Whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property." Yes, you read that correctly; there is no judicial or administrative review of the legality of the confiscation. Balko makes that point clear in his description of the petitioners in this case.
The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime. All perfectly legal, at least until now.

In addition to there being no real oversight to guarantee that police have evidence before siezing property, they have an economic incentive to be overzealous in their seizures. Balko explains both that and the practice's origins as part of America's disastrous drug policy here.

Civil asset forfeiture is a particularly odious outgrowth of the drug war. While few would argue that criminals ought to be able to keep the proceeds of their crimes, civil forfeiture allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Hence, forfeiture cases tend to have names like U.S. v. Eight Thousand Eight Hundred and Fifty Dollars, or U.S. v. One 1987 Jeep Wrangler. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, giving them a clear and unmistakeable incentive to seize as much property as often as possible.

Fittingly, the Supreme Court is hearing arguments in Alvarez on the 25th anniversary of the Comprehensive Crime Control Act of 1984, the federal legislation that gave us the modern abomination that is drug forfeiture. That law made it easier for federal prosecutors to seize the assets of drug suspects, regardless of whether they were ever charged with a crime. It allowed the government to use hearsay evidence in forfeiture proceedings, and required a showing of only probable cause that the property was tied to a drug crime in order for the government to keep it. That meant, for example, that federal agents could testify to something an informant had told them even if the informant was unavailable to the defense for cross examination.

After a series of particularly outrageous forfeiture cases made national headlines throughout the 1990s, the late Rep. Henry Hyde (R-Ill.) was able to push through some reforms in 2000. The Civil Asset Forfeiture Reform Act (CAFRA) bumped the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay, and provided for defendants who won in court to be compensated for attorney's fees.

But the CAFRA reforms applied only to federal law, not to the states, and after 1984 many states passed forfeiture bills similar to the new federal law. Illinois' law is one of the worst in the country. DAFPA still allows the state to use hearsay evidence, for example, and still sets the state's evidentiary burden at probable cause. Conversely, if property owners want to use the "innocent owner" defense, they can't use hearsay, and their burden is the higher "preponderance of the evidence" standard. Property owners must post a bond on the seized property just to get a hearing, which again can take up to six months. And even if they prevail in court, they still forfeit 10 percent of the bond. The government isn't required to reimburse them for attorney's fees, court costs, or interest, nor is the state liable for any loss of time or income caused by the pilfered property.

The fact that such practices even exist is completely absurd. The Fourth Amendment to the United States Constitution unequivicolly asserts that

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.

I seem to have missed the part where it says "unless we feel the need to engage in unreasonable seizure for prosecution of the drug war."