Eugene Volokh's Blog, page 2695
October 11, 2011
Barney Doesn't Heart Dick
I missed this quote from Barney Frank last week in response to BoA's customers being Durbinized with new bank fees:
The Massachusetts Democrat, who co-sponsored the Dodd-Frank financial reform bill, said he still supports opposing a decision by congressional lawmakers to include the fee crackdown in the legislation.
"The banks will charge you more, and I don't think the retailers are going to charge you less, which is why I didn't want to put it in the first place," Mr. Frank explained.
Some of the savings to retailers, of course, will be passed through to consumers (I assume Frank wasn't suggesting there'd be no pass-through at all by retailers). The real question is how much and how quickly the savings will be passed through by retailers versus the incidence and speed of pass-through in higher fees to bank customers (the question is one of incidence analysis). Based on available theory and empirical evidence it seems almost certain that the pass-through to bank customers in higher prices and lower quality will be larger and certainly faster (we already know the second part) than any potential savings to retailers. Home Depot, of course, said that it expected to reduce its costs $35 million per year from Durbin and made no allowance or qualification for pass-through to its customers. This estimate appears to be a static estimate and so doesn't count the inevitable substitution of consumers to greater use of credit and prepaid cards, which will wipe out some of this saving, as well as any effect of increased liquidity constraints on consumers from reduced use of debit cards.
Of course, even if the pass-through were largely equal (which it probably isn't) that leaves aside what for me is an even more important issue–perhaps in the end Home Depot's customers will save 2 cents on a 2 x 4 but that seems like small solace to the hundreds of thousands of low-income people who will be driven out of the mainstream banking system by Durbin fees. Not to mention the social cost of deterring the continued spread of electronic payments and increased reliance on paper-based payment systems (including all the social costs of cash).
Econ Nobel to Sargent and Sims
Yesterday the 2011 Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Thomas Sargent and Christopher Sims. In the WSJ, David Henderson comments:
On Monday the Nobel Committee announced the winners of the 2011 Nobel Prize in economics: Thomas J. Sargent of New York University and Stanford University's Hoover Institution, and Christopher A. Sims of Princeton University. The award was given for "their empirical research on cause and effect in the macroeconomy."
The Swedish economists announcing the award emphasized, correctly, the importance of Messrs. Sargent's and Sims's thinking about the role people's expectations play in economic decision making and the larger economy. But what they failed to mention is that their work has also offered empirical evidence that the school of thought known as Keynesian economics—which believes that government can turn a flagging economy around with the right combination of fiscal "stimulus" (generally government spending) and monetary policy—is fallible.
For more on the latest Nobel laureates, Tyler Cowen comments on the work of Sargent and Sims at Marginal Revolution. And here's more from Alex Tabarrok and Steve Hanke.
October 10, 2011
Anonymous Speech, Subpoenas and Internet User Identities, and Government Investigations
Over the last several years, various courts have held — in cases such as Dendrite Int'l, Inc. v. Doe No. 3 and Doe v. Cahill — that the First Amendment provides substantial, though limited, protection against subpoenas aimed at unmasking anonymous commenters; for more details on that protection, see this EFF analysis. But last week, Doe v. United States (N.D. Cal. Oct. 4, 2011) held that such rules generally do not apply to government investigations, here by the SEC, as opposed to investigations by private litigants. I just thought this was worth noting for readers who follow such matters.
Clark Neily (Institute for Justice) Guest-Blogging This Week
I'm delighted to report that Clark Neily of the Institute for Justice will be guest-blogging this week, about IJ's "judicial engagement" project. IJ is one of the leading libertarian public interest law firms in the country, and I've always much respected their work.
As readers of this blog doubtless know, both conservatives and libertarians are split on the degree to which courts should act aggressively in reviewing legislation for constitutionality, as opposed to deferring to legislative action, especially in the area of so-called "substantive due process." My sense is that different bloggers on this blog themselves disagree on this subject; and I suspect that I wouldn't always agree with IJ's broadest positions on this. But I much look forward to Clark's explanation of IJ's views, and I think our readers will find them interesting as well.
Appellate Judges Education Institute Annual Summit, for Appellate Lawyers as Well as for Judges
I'll be on a The Second Amendment in the Courts After Heller and McDonald panel Nov. 12, 2011 at the Appellate Judges Education Institute Summit in Washington, D.C. The conference (cohosted by the ABA Judicial Division Appellate Judges Conference and SMU School of Law) generally sounds very interesting, and is open to lawyers as well as to judges and staff attorneys. The conference speakers include Justice Sotomayor, Scott Turow, and many illustrious judges, professors, and practitioners (including our own John Elwood). For more, including the full agenda, see here.
District Court Awards One-Time Criminal Defendant $1.7 Million for Malicious Prosecution After EPA Agent Manufactured Evidence — With the Apparent Motive of Out-of-Town Travel to Spend More Time With His Mistress
On September 30, Judge Doherty of the United States District Court for the Western District of Louisiana handed down a decision in Vidrine v. United States awarding $1.7 million in damages for a malicious prosecution. The facts of what happened are simply appalling, and they deserve wider attention.
First, the background. Hubert Vidrine had been charged with knowingly storing hazardous waste materials without a permit for storing used oil at a refinery site. But there were two big problems with the case: It turned out that there was little evidence that the oil counted as hazardous waste, and no evidence that Vidrine had knowledge of what was happening. The government ended up moving to dismiss its own case, and later Vidrine filed an action under the Federal Tort Claims Act alleging that he was the victim of malicious prosecution. The case of malicious prosecution focused on misconduct by EPA Technical and Regulatory Expert Keith Phillips, who was one of the agents on the case and was responsible for developing the case against Vidrine.
In her decision, Judge Doherty found that Agent Phillips intentionally misled the prosecutor, his bosses, and the court as to the evidence against Vidrine, all to enable a prosecution against Vidrine even though there was no real evidence against him. Judge Doherty writes:
Had the AUSA had been given all the facts by Phillips and Barnhill (both good and bad, and excluding half-truths), or had the [agent's formal report of his interviews] been more complete and timely provided to the AUSA, and had a reasonable interpretation of the applicable regulations been provided to the AUSA and the grand jury by Phillips, and had Agent Phillips testified truthfully to the grand jury, this Court finds a very different result likely would have ensued: Hubert Vidrine would not have been indicted. For reasons that will never be known by anyone other than Agent Phillips, Agent Phillips was not content to merely "gather the facts and let the facts themselves either support or not support the indictment" as he testified one should do. Rather, Agent Phillips, either deliberately, or with reckless disregard for the truth, provided false testimony to the grand jury in order to secure an indictment against Hubert Vidrine, on at least two occasions, and permeated the entire investigation with omissions, half-truths, overstatements, inflammatory language, misstatements, patent falsehoods, and tortured readings of regulations.
What ultimately secured an indictment against Hubert Vidrine was not Mike Franklin, as Keith Phillips testified — it was Keith Phillips' and Phillips' "tweaking" of the Mike Franklin story to create facts, as Agent Phillips wanted to see them. Given the inherent problems, omissions and glaringly obvious weakness of Mike Franklin and his information, Agent Phillips and Barnhill's omission of those problems, and Phillips' dogged pursuit of Hubert Vidrine, this Court is left with the question, "Why?"
Perhaps the most remarkable part of the Vidrine malicious prosecution case is Judge Doherty's answer to the "why" question. Here's the eye-popping two paragraphs, with emphasis added:
One of the more distressing allegations made at trial, involved allegations of Agent Phillips' sexual, extra-marital affair (and its subsequent "cover up") with Agent Barnhill. The evidence strongly indicated Agent Phillips deliberately used his investigation and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his extra-marital affair with Agent Barnhill, and perhaps, to exert improper influence over the manner in which she investigated and reported upon this case. Agent Barnhill candidly testified that she and Agent Phillips began a physical, sexual relationship while assigned to this matter, which lasted from approximately 1996 until January or February 2001. Agent Barnhill testified she and Agent Phillips were only physically intimate when working together on the Vidrine case — in other words, they did not meet to pursue their sexual relations on occasions when they were not working the case together. Thus, the case granted the opportunity for those rendez-vous, as well as providing justification for Agent Phillips wife.
During the investigation and prosecution, Agent Barnhill, who was single, lived in South Louisiana; Agent Phillips, who was married, lived in Dallas, Texas with his wife. Prior to and at trial, plaintiffs' counsel consistently argued Agent Phillips used the Vidrine investigation as a cover, excuse and opportunity to facilitate his illicit affair with Agent Barnhill and to hide the affair from his wife. Plaintiffs consistently argued Keith Phillips manufactured a case, both in law and fact, against Hubert Vidrine, and carefully fed the AUSA and his supervisors only the information which would further that end and perpetuate the case, all to promote access to Agent Barnhill and perpetuate and conceal their illicit affair. Regrettably, the Court agrees with plaintiffs: this inappropriate and unprofessional behavior likely was, at least in part (if not in whole) a motivation for Agent Phillips' continued pursuit of Hubert Vidrine, without probable cause, and certainly with a complete and total reckless disregard of Hubert Vidrine's rights.
Wow!
The Court concludes:
[T]his court finds Agent Phillips testimony, conduct and documentation illustrate a deliberate patten of disregard for oaths taken, truth of the matter involved, wholly lacking in intellectual honesty, and exhibiting a deliberate intent to mislead all involved, particularly the prosecutors with whom he worked and who were relying upon his investigation and technical expertise in order to evaluate their case. Agent Phillips has displayed the very worst example of abuse and misuse of the power and trust bestowed upon a governmental agent, and has brought great shame upon the agency which had entrusted him with that power, responsibility, and authority.
Wow again. Kudos to the Washington Legal Foundation for its pro bono work representing Vidrine.
UPDATE: I see that Agent Phillips received his due in the case. According to a DOJ press release dated October 4, Phillips recent pled guilty to perjury and obstruction:
A former special agent with the Environmental Protection Agency (EPA), Criminal Investigation Division (CID) in Dallas has pleaded guilty to lying under oath and obstructing justice, announced Assistant Attorney General Lanny A. Breuer of the Justice Department's Criminal Division and Inspector General Arthur A. Elkins Jr. of the EPA's Office of the Inspector General (OIG).
Keith Phillips, 61, of Kent, Texas, pleaded guilty yesterday before U.S. District Judge Richard T. Haik Sr. in the Western District of Louisiana to a two-count indictment charging him with obstruction of justice and perjury. The charges stemmed from his sworn testimony in relation to a case that was pending in the Western District of Louisiana.
. . . Phillips faces a maximum of 10 years in prison and a fine of $250,000 on the obstruction of justice count, and five years in prison and a fine of $250,000 on the perjury count. A sentencing date has not yet been scheduled by the court.
UCLA Law School Forum on the ICC — Discussion of the ICC and Prevention of International Crimes
UCLA Law School's Sanela Daniela Jenkins Human Rights Project has a special joint online forum with the International Criminal Court office of the prosecutor, which is currently running commentary on the question of prevention, and how the ICC can maximize its crime prevention impact. It features contributions from a variety of experts from a variety of perspectives — Tomer Broude, Bill Burke-White, Richard Goldstone, David Scheffer, and me. The initiative is run by UCLA professor Richard Steinberg.
The forum can be found here. Readers are invited to post comments, and forum contributors are also invited to respond and undertake a discussion. The contributions on this crucial question are relatively short, readable essays, and should be of interest to the general public, students at the undergraduate and graduate level, journalists, public policy specialists and others. Congratulations to Professor Steinberg for pulling it together, and I am certainly honored to take part.
October 9, 2011
Governor Brown Vetoes Bill on Searching Cell Phones Incident to Arrest
The U.S. Supreme Court denied cert last week in , a Fourth Amendment case from California's Supreme Court which held that a cell phone can be searched incident to arrest. Meanwhile, over the summer, California state legislators passed SB 914, a bill limiting searches incident to arrest in California. Just today, however, California Governor Jerry Brown vetoed the bill and released the following statement:
This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest. Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.
I think Governor Brown has it exactly backwards. It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux for the reasons I developed in this article. In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy. For these reasons, legislatures are much better equipped than courts to strike the balance between security and privacy when technology is in flux.
Perhaps the major disadvantage of legislatively-made search and seizure rules is that the head of the executive branch that oversees law enforcement also generally has the veto power over the legislature's efforts. The head of the executive branch can therefore block limits on the executive's own power, at least in some circumstances. I don't follow California politics much, but I would guess this reality, not institutional advantages of courts and legislature, is what really led to Governor Brown's veto.
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What Kind of Drones Arms Race Is Coming?
New York Times national security correspondent Scott Shane has an opinion piece in today's Sunday Times predicting an "arms race" in military drones. The methodology essentially looks at the US as the leader, followed by Israel — countries that have built, deployed and used drones in both surveillance and as weapons platforms. It then looks at the list of other countries that are following fast in US footsteps to both build and deploy, as well as purchase or sell the technology — noting, correctly, that the list is a long one, starting with China. The predicament is put this way:
Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat.
"Is this the world we want to live in?" asks Micah Zenko, a fellow at the Council on Foreign Relations. "Because we're creating it."
By asserting that "we're" creating it, this is a claim that there is an arms race among states over military drones, and that it is a consequence of the US creating the technology and deploying it — and then, beyond the technology, changing the normative legal and moral rules in the international community about using it across borders. In effect, the combination of those two, technological and normative, forces other countries in strategic competition with the US to follow suit.
It sounds like it must be true. But is it? There are a number of reasons to doubt that moves by other countries are an arms race in the sense that the US "created" it or could have stopped it, or that something different would have happened had the US not pursued the technology or used it in the ways it has against non-state terrorist actors. Here's a couple of quick reasons why I don't find this thesis very persuasive, and what I think the real "arms race" surrounding drones will be.
Unmanned aerial vehicles have clearly got a big push from the US military in the way of research, development, and deployment. But the reality today is that the technology will transform civil aviation, in many of the same ways and for the same reasons that another robotic technology, driverless cars (which Google is busily plying up and down the streets of San Francisco, but which started as a DARPA project). UAVs will eventually move into many roles in ordinary aviation, because it is cheaper, relatively safer, more reliable — and it will eventually include cargo planes, crop dusting, border patrol, forest fire patrols, and many other tasks. There is a reason for this — the avionics involved are simply not so complicated as to be beyond the abilities of many, many states. Military applications will carry drones many different directions, from next-generation unmanned fighter aircraft able to operate against other craft at much higher G stresses to tiny surveillance drones. But the flying-around technology for aircraft that are generally sizes flown today is not that difficult, and any substantial state that feels like developing them will be able to do so.
But the point is that this was happening anyway, and the technology was already available. The US might have been first, but it hasn't sparked an arms race in any sense that absent the US push, no one would have done this. That's just a fantasy reading of where the technology in general aviation was already going; Zenko's 'original sin' attribution of this to the US opening Pandora's box is not a credible understanding of the development and applications of the technology. Had the US not moved on this, the result would have been a US playing catch-up to someone else. For that matter, the off-the-shelf technology for small, hobbyist UAVs is simple enough and available enough that terrorists will eventually try to do their own amateur version, putting some kind of bomb on it.
Moving on from the avionics, weaponizing the craft is also not difficult. The US stuck an anti-tank missile on a Predator; this is also not rocket science. Many states can build drones, many states can operate them, and crudely weaponizing them is also not rocket science. The US didn't spark an arms race; this would occur to any state with a drone. To the extent that there is real development here, it lies in the development of specialized weapons that enable vastly more discriminating targeting. The details are sketchy, but there are indications from DangerRoom and other observers (including some comments from military officials off the record) that US military budgets include amounts for much smaller missiles designed not as anti-tank weapons, but to penetrate and kill persons inside a car without blowing it to bits, for example. This is genuinely harder to do — but still not all that difficult for a major state, whether leading NATO states, China, Russia, or India. The question is whether it would be a bad thing to have states competing to come up with weapons technologies that are ... more discriminating.
The real place where states divide in their technological abilities with respect to drones is not about avionics or weapons — but the third, crucial conceptual element of a drone: sensor capabilities. Those are capabilities in both hardware, the kinds of signals that can be taken in from the real world (video, radar, infrared, etc.), and software, the kinds of analytic integration that can be achieved, coupled with other streams from outside the drone, such as general telecomm monitoring. That is an area in which the US has a significant edge — the Chinese, Russians, India, or for that matter, Germany or France, could do it if desired, though everyone will find it easier to steal it and reverse engineer.
Worth noting, as well, something that is rarely noted: today's sensor technologies work well over deserts and largely bare mountains. They have not been developed for seeing through forest or jungle cover. Moreover, none of this takes account of a central reason why the US is successful with drones in Pakistan — the investment over years in an on-the-ground intelligence network that permits targeting in the first place: the focus on drones as technology in the Shane piece doesn't not pay enough attention to this crucial, non-technological element. The recent Reuters piece on the ground-level intelligence piece makes it clear that purely focusing on the technology gives a profoundly misleading picture of drones and their capabilities.
But again, let's ask, why does a state want more advanced sensor technology? Yes, better sensor technology does provide greater intelligence in targeting. And China will certainly want that, because it will find that it has reasons for wanting to engage in targeted assassination against non-state actors or, for that matter, state targets. But an awful lot of countries that want drones are not really that picky, because they don't fundamentally care much about greater discrimination in targeting; they are not that worried about indiscriminate attack, either because, as in the case of Hamas targeting Israel, indiscriminate attack is the point or because they don't care about collateral damage so long as the target is destroyed. So why invest in greater discrimination achieved through expensive and perhaps inaccessible sensor technologies? If there were going to be an arms race in drones, it would take place here, where the technology is not already widely available — but the parties who want it are limited.
The real arms race in drones will take place, not around drones themselves, but in counters to drones. Drones are effective, in their current form, against non-state actors, terrorists, low tech insurgents, because they have no air-defense systems. The game changer in Afghanistan against Soviet helicopters was American-supplied Stinger missiles. When some state designs and starts handing out some form of air-defense system to non-state actors, then the arms race in drones actually begins. It begins with re-designs of slow, noisy surveillance craft designed to operate at high altitude over long periods of time. It takes into account one of the most likely forms of counter to drones — viruses or other malware that interferes with the communications links that control the drones — shades of the malware discovered in drone systems recently.
It is indeed likely that the future will see more instances of uses of force at a much smaller, often less attributable, more discrete level than conventional war. Those uses will be most easily undertaken against non-state actors, rather than states, though the difference is likely to erode. The idea that it would not have occurred to China or Russia that drones could be used to target non-state actors across borders in safe havens, or that they would not do so because the United States had not done so is far-fetched. That is so not least because the United States has long held that it, or other states threatened by terrorist non-state actors in safe havens across sovereign borders, can be targeted if the sovereign is unable or unwilling to deal with them. There's nothing new in this as a US view of international law; it goes back decades, and the US has not thought it some special rule benefiting the US alone. So the idea that the US has somehow developed this technology and then changed the rules regarding cross-border attack on terrorists is just wrong; the US has believed this for a long time and thinks it is legally and morally right.
Then there a further idea that drones make it "too easy" to reach across borders and that is the difference today; a long-standing legal doctrine suddenly made far too powerful by reason of new technology. I am not convinced. That drones — precisely because they are accepted as both more sparing of civilians and more sparing of one's own forces — makes it "too easy" to use force, reduces the disincentive against using force, has proven irresistible to many as a criticism of drones and targeted killing. I address some of the questions in this draft article. Still, one consideration is simply that the number of "resorts to force" is not enough to damn drones and targeted killing. One must also consider the intensity of the fighting that ensues by comparison to conventional war, as well as the question of whether they increase or diminish the damage that might otherwise arise from conventional wars that take place in lieu of these more discrete uses of force.
The moral or legal case against drones and targeted killing, because their jus in bello virtues supposedly increase the propensity to use force, is not obvious, at least not to me. But in any case, this is almost certainly the future direction of uses of force. Shane is falling into a trap here not dissimilar to the advocates who believed that they could forestall the militarization of airplanes and aerial bombardment in the early 20th century. Today's targeted killing technologies aboard drones is finally providing a technological advance — not a solution, certainly, but an advance — on the problem of indiscriminate aerial bombardment that begin with airplanes in the 20th century. It's not just that this technology is coming, in other words — it is that, seen over the whole course of the history of military aviation, this is a good thing, not a bad thing. It's a pity that the Times article doesn't see this — and given what Scott Shane and Mark Mazzetti wrote in their last, outstanding piece on drones (correctly observing that drones are about non-state actors, not interstate conflict, because drones are simply too vulnerable today), surprising to me.
There are indeed important ways in which state practice needs to evolve to deal with the legal and moral implications of new technologies and their strategic implications. One is the development of a sort of "state practice" of "intelligence-driven, discrete uses of force" — a clumsy term for what amounts to evolving "covert," but often not covert, action. That's where the US needs to lead the way — in the development of state practice to assert that even these emerging forms of using force are, in the first place, subject to the basic customary obligations for any use of force: necessity, distinction, proportionality. I have said a couple of times, mostly to amusement or incredulity, that the beginning that the United States under both the Bush and Obama administrations is making toward developing state practice that can be asserted as standards for the United States and other actors might well turn out to be Harold Koh's most important contribution to international law as legal adviser to the State Department. The Barron-Lederman memo on the targeting of Al-Awlaki is an important domestic law homologue to that.
But return to the Scott Shane article. It is simply implausible to think that countries would not have been developing UAVs for military uses, just as they are being developed and deployed for civilian uses. The US might have been first, but this is where civilian aviation, and a lot of other robotic technologies, have been going even if only now becoming visible to the broader public. The deployment of weaponized drones by the US is even less the morality fable that Zenko suggests and Shane endorses as a moralizing rebuke to the United States in the Times piece. The real struggle begins over counter-technologies to drones, and counters to the counters — and that, ad infinitum.
"You win. You lose. Let's have lunch."
So concludes constitutional law and national security scholar Philip Bobbitt, in an email comment to Ben Wittes at Lawfare. Bobbitt is responding to Wittes' post on a Awlaki-targeting question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane. Bobbitt here criticizes the policy, as I put it earlier, of conducting "foreign policy-by-leak." Here's a little bit more of the comment, but I commend the whole thing to you at Lawfare.
This is related to what used to so irritate me about the Bush signing statements. I didn't have a problem with the substance—that a president can refuse to enforce statutory language he deems unconstitutional—but rather with the fact that the statements were little more than boiler-plate repetitions of that general point. The president's not explaining his position is rather like an appellate court saying to the parties to a dispute, "You win. You lose. Let's have lunch."
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