Columnist.
The New York Times reports that George Zimmerman's murder trial, which began on Monday in Sanford, Fla., is "spotlighting Florida's Stand Your Ground law," even though "that law has not been invoked in this case." Writing in The Guardian two weeks ago, Sadhbh Walshe likewise claimed "the trial will shine a spotlight on Florida's controversial self-defense laws," although she also conceded that Zimmerman's defense does not depend on the right to stand your ground.
"What we're seeing taking place in Syria is heartbreaking," President Barack Obama said during a debate with Mitt Romney last October, "and that's why we are going to do everything we can to make sure that we are helping the opposition." You can't say he didn't warn us -- not only about escalating U.S. involvement in Syria's civil war but also about the lack of a credible argument for it based on anything resembling national defense. Judging from the explanation that deputy national security adviser Ben Rhodes gave last week for Obama's decision to start arming the Syrian rebels, the president painted himself into a corner with his own red line. "The president has been clear that the use of chemical weapons ... is a red line for the United States," Rhodes told reporters, "as there has long been an established norm within the international community against the use of chemical weapons."
Last week President Obama claimed he welcomed the public debate over recently revealed government surveillance programs that track personal information about millions of innocent Americans. But if it were up to him, the debate never would have happened, since the programs would have remained secret. And if his administration is true to form, it will treat the whistleblower who made the debate possible as a criminal. The truth is that Obama does not think a debate is necessary, because top government officials have already considered all the relevant points behind closed doors and arrived at the perfect formula for sacrificing privacy in the name of security. You will have to take his word for it, however, because the formula is classified. This is Obama's idea of open and transparent government.
Antonin Scalia may be the Supreme Court justice whom progressives most love to hate. Daily Kos blogger Sylvia Moore says he is "clearly an authoritarian." A California Lawyer reader complains online that Scalia "actively promotes an authoritarian agenda in which the rights of the individual have little meaning." Even legal writer Joan Biskupic, in her relatively respectful and sympathetic biography of Scalia, refers to his "authoritarian bent" and "authoritarian instinct." The latest refutation of this caricature is Maryland v. King, a decision issued Monday in which the Supreme Court upheld DNA testing of arrestees. Scalia's dissent illustrates how his respect for the Constitution leads him to side with the individual against the government -- something that happens more often than you would expect based on his reputation.
Last week, a guy named Barack Obama gave a speech in which he expressed appropriate concern about the abuse of government power in the name of fighting terrorism. Too bad he's not in a position to do anything about it. Obama, who used to teach constitutional law at the University of Chicago, quoted James Madison's warning that "no nation could preserve its freedom in the midst of continual warfare." Yet by declaring war against al-Qaida and its shifting and proliferating allies and offshoots -- groups that will not disappear or surrender anytime in the foreseeable future -- he has reinforced the rationale for a never-ending military struggle that sacrifices civil liberties on the altar of national security.
Ed Meese, Ronald Reagan's attorney general, spoke for many Republicans when he called President Obama's 2012 appointment of four federal officials without Senate approval "a breathtaking violation of the separation of powers." But according to a recent federal appeals court decision, abuses like Obama's have been a bipartisan practice in recent decades, with Republicans, including Meese's former boss, more sinning than sinned against. The Constitution requires the Senate's "advice and consent" for all appointees aside from "inferior officers," whom Congress by law allows the president or a department head to pick on his own. There is one exception: "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
Colorado's DUID Law Treats Pot Smokers as Public Menaces Even When They're Not
This week, the Colorado General Assembly put the finishing touches on legislation aimed at taxing and regulating the commercial distribution of marijuana for recreational use. The process has been haunted by the fear that the federal government will try to quash this momentous experiment in pharmacological tolerance -- a fear magnified by the Obama administration's continuing silence on the subject. Six months after voters in Colorado and Washington made history by voting to legalize marijuana, Attorney General Eric Holder still has not said how the Justice Department plans to respond. But if the feds are smart, they will not just refrain from interfering, they will work together with state officials to minimize smuggling of newly legal marijuana to jurisdictions that continue to treat it as contraband. A federal crackdown can only make the situation worse -- for prohibitionists as well as consumers.
At a 2008 shareholders meeting, Amazon founder and CEO Jeff Bezos explained why he opposed requiring businesses like his to collect state and local taxes on their interstate sales. "We're not actually benefiting from any services that those states provide locally," Bezos said, "so it's not fair that we should be obligated to be their tax collection agent." Last year, Paul Misener, Amazon's vice president for global public policy, testified in favor of a bill allowing states to demand sales tax from online merchants, saying Congress should "level the playing field for all sellers." As that switcheroo suggests, there are plausible fairness arguments on both sides of this issue. And although there is a way to bridge the gap, it is not the route Congress seems intent on taking.
Boston bombing suspect Dzhokhar Tsarnaev, captured last Friday evening, was not informed of his right to remain silent and his right to a lawyer until Monday morning, nearly three days after his arrest. The FBI said the delay was justified under the "public safety" exception to Miranda v. Arizona, the 1966 ruling in which the Supreme Court said the now-familiar warnings are required to enforce the Fifth Amendment's guarantee against compelled self-incrimination. But the public-safety exception itself is not justified, which becomes clear when you consider the 1984 decision that announced it. New York v. Quarles involved a late-night confrontation between police and a suspected rapist at an A&P supermarket in Queens, N.Y. Officer Frank Kraft chased Benjamin Quarles into the back of the store, losing sight of him briefly before stopping, handcuffing and frisking him. Discovering an empty shoulder holster, Kraft asked where the gun was. "The gun is over there," Quarles said, nodding toward a box where Kraft found a .38-caliber revolver.
Would a Broader Screening Requirement for Gun Buyers Reduce Violent Crime?
"This is about doing the right thing for all the families who are here that have been torn apart by gun violence," President Obama declared on Monday, promoting his "common-sense gun safety reforms" in a speech at the University of Hartford, where the audience included parents of children who were murdered at Sandy Hook Elementary School in nearby Newtown last December. "This is not about politics." Unless you disagree with him. "There is only one thing that can stand in the way of change," Obama said, "and that's politics in Washington." Members of Congress have a simple choice to make, he explained: "What's more important to you -- our children, or an A grade from the gun lobby?"
In two cases last week, lawyers urged the Supreme Court to respect the democratic process by upholding bans on legal recognition of gay marriages. But only one of those bans can plausibly be portrayed as representing the will of the people. Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision legalizing gay marriage, reflected popular opposition to what was perceived as arrogant meddling by unelected judges. Although the federal Defense of Marriage Act (DOMA) was driven by a similar populist impulse, in practice it frustrates the will of the people in states where voters or their elected representatives decide to treat gay and straight couples equally.
The first time David Floyd was stopped and frisked, on a Friday afternoon in April 2007, he was walking down Beach Avenue a few doors from his house in the Bronx when two police officers confronted him, demanding to know who he was, where he was going, what he was doing and whether he was carrying any weapons. Floyd, at the time a freelance film editor and now a medical student, presented his driver's license and explained that he was walking home. Unsatisfied, one of the officers searched Floyd, feeling under his shirt and inside his pants pockets. He found nothing illegal. Testifying last week in federal court, Floyd said the incident left him feeling "frustrated (and) humiliated, because it was on my block where I live, and I wasn't doing anything."
Back in 2007, when he was running for president, Barack Obama criticized George W. Bush's expansive vision of executive power, saying, "I reject the view that the president may do whatever he deems necessary to protect national security." The day after taking office in 2009, Obama declared that "my administration is committed to creating an unprecedented level of openness in government." Those two positions went together, because secrecy requires power and power thrives in secrecy, as Obama himself has been demonstrating for the last four years. Three recent cases illustrate how breaking his promise of "the most transparent administration in history" has helped Obama break his promise not to use national security as an excuse to violate civil liberties.
The Evasiveness That Provoked Rand Paul's Filibuster
When President Obama endorsed gay marriage last year, he said the issue should be left to the states. Last week, he said it shouldn't. To be more precise, a Supreme Court brief filed by the Obama administration last Thursday argues that California's ban on gay marriage denies homosexuals the "equal protection of the laws" guaranteed by the 14th Amendment. Although the brief focuses on Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision requiring the state to recognize gay marriages, its logic suggests that a policy Obama himself rejected less than a year ago is constitutionally mandatory. For many years, Obama said he supported equal rights for gay couples, except for the right to call their relationship a "marriage." That is exactly the policy he now says is unconstitutional.
Imagine that a police officer, after taking it upon himself to search someone's car, is asked to explain why he thought he would find contraband there. "A little birdie told me," he replies. Most judges would react with appropriate skepticism to such a claim. But substitute "a big dog" for "a little birdie," and you've got probable cause. Or so says the U.S. Supreme Court, which last week unanimously ruled that "a court can presume" a search is valid if police say it was based on an alert by a dog trained to detect drugs. The court thereby encouraged judges to accept self-interested proclamations about a canine's capabilities, reinforcing the alarmingly common use of dogs to justify invasions of privacy.
Reform Should Make the Law Simpler, Not More Complicated
When President Obama approves a drone strike against someone he identifies as a terrorist, John Brennan explained at his confirmation hearing last week, the missile fired from that unmanned aircraft is delivering prevention, not punishment. "We only take such actions as a last resort to save lives when there's no other alternative," said Brennan, the counterterrorism adviser Obama has picked to run the CIA. A Justice Department white paper leaked a few days before Brennan's hearing likewise describes death by drone as an "act of national self-defense," part of an "armed conflict" with al-Qaida and its allies. Yet the white paper also speaks of due process for American citizens condemned to death by the president, a requirement it says can be met through secret discussions within the executive branch. This contradiction at the heart of Obama's "targeted killing" policy, combining the rules of the battlefield with the rules of the courtroom, makes a muddle of both.
