Dare to Diversify

Ian Ayres

Crosspost from Freakonomics:

Most people viscerally understand that it would be a horrible idea to invest in the stock market for just one year of their lives. If it turned out that the one year was 2008 (when the S&P index lost 37 percent), your retirement portfolio would be toast. It’s smarter and safer to spread your exposure to stock market volatility over a number of years.

Posted 2:47 PM by Ian Ayres [link]

Should Congress Codify The Public-Safety Exception to Miranda for Terrorism Cases?

Rick Pildes

Constitutional law already permits law-enforcement officials to question a suspect in custody, without Miranda warnings, if public-safety considerations justify doing so. For at least 25 years, it has been clear that law enforcement does not have to provide Miranda warnings before asking a suspect questions that, as the Supreme Court has put it, are “reasonably prompted by a concern for the public safety.” Thus, if the FBI captures a suspected terrorist bomber, and has grounds for concern that other attempted bombings might be in motion, the FBI can non-coercively interrogate the suspect for information about those other suspected plots without giving the suspect Miranda warnings. One crucial consequence is that any statements the suspect makes during that questioning that also incriminate himself can be used against him in a later criminal prosecution.

Yet the Court has recognized and elaborated the public-safety exception in cases unlike many of today's terrorism cases, and thus the boundaries of the exception in the terrorism context remain unclear. When the FBI or other government agencies capture a terrorist suspect, they will often want to question him or her for two related, but different kinds of purposes: (1) for information that will protect the public against any immediate security threats and (2) for more general intelligence about others who might have assisted the suspect in the (completed or attempted) act of terrorism for which he has been apprehended, about the nature and organization of the terrorist groups he or she is associated with (if any), and the like. While the public-safety exception permits pre-Miranda questioning for the first purpose, how that exception applies to this second purpose is far from clear.

Is that a problem for effective counterterrorism efforts? Before addressing that question, it is important to clear up a common confusion. There is not much doubt that the FBI can non-coercively question a captured suspect for more general intelligence information, without Miranda, if the government does not use any of the suspect’s testimony to incriminate him at a later criminal trial. Constitutional law does not impose any free-floating, all-purpose, affirmative obligation on law-enforcement officials to provide Miranda warnings anytime they have a suspect in custody; as Orin Kerr recently pointed out, constitutional law imposes only the more specific obligation not to use any incriminating statements taken from a non-Mirandized suspect against him at his later criminal trial. If the FBI and other agencies simply use the information to go after the terrorist organization and other suspects – if the FBI gives this information to the government of Pakistan, for example, which then uses it to capture other suspects there – the fact that this information was obtained through non-coercive questioning, in the absence of Miranda, obviously does not create any legal problem.

But suppose counterterrorism experts do believe there is a conflict between effective questioning of a suspect for general intelligence information, provision of Miranda warnings, and the ability to effectively prosecute that suspect criminally. I have spoken with interrogators of high-level terrorist suspects from the FBI and the NY Police Department’s Counterterrorism Unit, as well as prosecutors, and I have heard a range of views on that question. I do not have the expertise, nor consider myself well-informed enough, to answer that empirical question. But if policymakers do come to the conclusion that a serious conflict of this sort exists, and that policy should be changed to mitigate this conflict, what would be the way of doing so that most directly centers in on this problem?

In my view, the way to do so would be for Congress to enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

Ultimately, the Supreme Court would have the final say as to whether legislation that provides greater detail about how the public-safety exception applies to terrorism cases is compatible with the Fifth Amendment privilege that Miranda is designed to protect. But experience shows that the Court would give great weight to any judgment on this kind of national-security question jointly endorsed by Congress and the President. If there is a strong need to permit law enforcement to have a period of time to question for intelligence information without Miranda warnings, it would be better to have this done not through ad hoc guesses from the FBI in each case as to what’s permissible, or unilateral executive-branch action, but through legislation. As I and many others have argued since Sept. 11th, the courts have been most willing to accept national-security policy judgments when they are the product of legislation.

Again, I do not know whether any clarification of how Miranda applies to terrorism cases is empirically necessary. But if so, there are two further advantages to Congress addressing this issue directly. One is that legislation could provide clear groundrules and guidance in advance to law-enforcement officials, who should not have to make these rules up as each new attempted attack arises. The other is that, if Miranda is a concern, Congress ought to focus first on policies that address that issue directly, in a targeted way, rather than some of the far more extreme proposals now emerging, such as stripping arrested citizens of their citizenship, merely to ensure that law enforcement be able to question them effectively.

UPDATE: I did not want to prolong the initial post unduly, but let me note here that the last time Congress attempted to legislate in the precise area of Miranda, its efforts were struck down by the Court in Dickerson. Yet nothing the Court said in Dickerson suggests that Congress is powerless to enact any legislation affecting bearing on the Miranda regime. The problem with the statute at issue in Dickerson was that it essentially supplanted the Miranda requirement altogether, mandating instead a totality-of-the-circumstances analysis that looked very much like the very regime that Miranda had replaced when it was decided. In contrast, legislation specifying some contours of an already judicially-recognized exception to Miranda as it applies to national-security cases would not pose nearly the same threat to the Miranda regime itself. Miranda’s basic constitutional footing, reaffirmed by the Dickerson Court, would remain; Congress and the President would together simply have filled in the details of an aspect of that regime that the Court has recognized. And just as important, the statute in Dickerson was designed for routine crimes; by contrast, a statute specifically designed to address terrorism investigations would be more likely to receive some of the deference the Court historically has given to statutes in the national-security area.
Posted 9:00 AM by Rick Pildes [link] (10) comments

Glenn Beck as civil libertarian and Joe Lieberman as authoritarian

Sandy Levinson

I note, with some admitted astonishment, the following from a story just posted on the New York Times about the right-wing criticisms being directed at the Administration for deigning to respect any legal rights of the "Times Square bomber":

Among those who took another view, though, was Glenn Beck, the conservative Fox News commentator who said Mr. Shahzad was entitled to his constitutional rights.

"He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens,” Mr. Beck said. “He has all the rights under the Constitution. We don’t shred the Constitution when it’s popular. We do the right thing.”

As someone who has certainly not refrained from harsh criticism of Mr. Beck--I think I used the word "fascist" to describe him--it seems incumbent to recognize his decidedly welcome support of constitutional rights for (at least) unpopular citizens. That's more than John McCain is now willing to do.

Then there's Joe Lieberman:

“It’s time for us to look at whether we want to amend that law [depriving citizenship of those who enlist in foreign militaries against the US] to apply it to American citizens who choose to become affiliated with foreign terrorist organizations,” he said, “whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”

There may be something to be said for his first suggestions, at least so long as it remains constitutional to engage in involuntary denaturalization at all. The Supreme Court has tightened the circumstances, but I suspect there would be five votes on the current Court for such a proposal. But consider the implications of the suggestion by this Yale Law School graduate, former Attorney General of Connecticut who believes that it is enough simply to allege that status to lose all "rights that come with that citizenship." No trial or conviction necessary in Sen. Lieberman's world. I'll take Glenn Beck (or, for that matter, the Antonin Scalia who forcefully dissented in Hamdi and said in effect that any policy like Lieberman's would require the Congress overtly to suspend habeas corpus) over the egregious junior senator from Connecticut. Will the Nutmeg State actually return this continuing embarrassment to the Senate in 2012?
Posted 7:24 PM by Sandy Levinson [link] (38) comments

Constitutional change in the UK?

Sandy Levinson

Simon Schama has an interesting leader in the current New Yorker about the upcoming election in the UK and the threat it poses to the current version of the parliamentary system dominated by two parties. If there is a "hung parliament," with neither Tories nor Labour getting a majority (and either would be able to get a majority of seats only because of the vagaries of the first-past-the-post single-member-district syndrome that allows parties to claim handsome "mandates" with distinctly less than a majority of the popular vote], then the price of coalition with the Liberal Democrats would be to dump that in favor of some version of proportional representation. Schama concludes as follows:

we will find out whether Clegg—whose party, under the current system, will be awarded proportionately far fewer seats than either of the others—has the stuff of the revolutionary parliamentarian Oliver Cromwell in him (minus the disagreeable beheading of the monarch). Cameron has recently been hedging his responses when asked if, to get to Downing Street, he would pay Clegg’s price of a referendum on electoral reforms. That’s because if such reforms—which have already been adopted in elections for the Scottish and Welsh legislatures—were extended to Westminster it would almost certainly mean the end of the two-party system. The really shocking, really thrilling thing is that many Britons, faced with this prospect, seem ready to say, Goodbye. And good riddance.

I confess this is a good enough reason for me to be rooting for just such a hung parliament. The "mother of parliaments" is increasingly sclerotic, and it's just possible that the Brits will actually be forced to confront at least some of their "constitutional" problems. And perhaps California and even New York will do so as well (not to mention Maryland, which, under its state constitution, will be voting this year, I believe, whether or not to have a new convention). If only the US Constitution would be subject to similar scrutiny.... No doubt this is wishful thinking, but, hey, on a lovely spring day, a guy can dream.... (Perhaps someone in Florida will take cognizance of the fact that their next senator will, almost undoubtedly, have been rejected by around 60% of the electorate and ask whether an alternative to first-past-the-post might make some sense. This is actually the perfect time for such a debate in Florida, since everyone is effectively behind a "veil of ignorance" in terms of who would be helped or hurt by moving to a runoff or my preferred Alternative Transferrable Vote. Either one would guarantee that more Floridians would feel "represented" by their senator than is likely to be the case if one of the threesome wins with, say, 37% of the total vote (which, by coincidence, is exactly the %age of the vote received by Texas Governor Rick Perry in 2006, in a four-way race. This is one reason why Bill White shouldn't be counted out of the race, since Perry certainly isn't any more admirable now than he was in 2006, when he was rejected by 63% of the electorate). But I digress....
Posted 2:19 PM by Sandy Levinson [link] (28) comments

Will Obama FCC Break Network Neutrality Promise—Undermine 21st Century Public Sphere?

Marvin Ammori

A somewhat obtuse Washington Post article today says that the FCC Chairman is considering a “deregulatory” framework for Internet access.

Translating the article is simple for those watching this debate at political sites: the FCC is considering following the Bush administration’s disastrous policies of stripping itself of jurisdiction over Internet access, treating such access as effectively un-regulatable “information services.” The FCC’s recent loss at the D.C. Circuit made it clear that the practical effect of such a decision would be to hand the Internet over to the phone and cable companies, undermining innovation, competition online, and Americans’ interests in free speech, in privacy, and in associations. The FCC would then face insurmountable legal obstacles to pursuing network neutrality, a common-sense policy that would forbid cable and phone companies from doing what they’ve long lobbied to do: block or discriminate against websites and applications on the Internet. This would violate Obama campaign promises. (See clips here and here, for example.)

This episode is an example of what Jack Balkin often writes about—how the most important free speech issues of our day will not be decided by the Supreme Court but through technical decisions by bodies like the FCC. And they will be decided not by lawyers or engineers or policy experts, but perhaps by lobbyists and executives working for the phone and cable companies. These lobbyists are urging the FCC to follow the path of bureaucrats and politicians before them: break a promise to the public, but do it in an obscure, technical-sounding way so that nobody understands, until it’s too late.

At the heart of the debate is the issue of Internet openness – whether to allow the phone and cable companies to control everything you do on the Internet, or to ensure that the network infrastructure provides access to an open, unfettered space for communications. Many scholars have written in this space – Jack Balkin, Larry Lessig, Yochai Benkler, Barbara van Schewick, Tim Wu, Mark Lemley, Susan Crawford, and Brett Frischmann, to name a few. All of them have supported control by the public over control by the phone and cable execs. Tim Wu, Susan Crawford, and I explained the legal issue in a letter to the Chairman we sent last Friday.

And the FCC has ostensibly supported this goal as well – the Chairman has pledged “unwavering support” for network neutrality. The President has said he is a big supporter or network neutrality and that he would appoint FCC Commissioners who supported network neutrality. But to get to enforceable network neutrality, the FCC must first correct the mistakes of the past, most made under the Bush administration. The FCC under George W. Bush stripped itself of jurisdiction over Internet practices with decisions issued from 2002 to 2007—in that deregulatory haze that led to Wall Street abuses, our Internet infrastructure falling behind other nations, and an economic collapse. Regulation to protect consumers and competition was considered as quaint and outdated as the Geneva Conventions.

The Obama administration promised to reverse these failed Internet policies, and Barack Obama emphatically promised network neutrality during the campaign and since becoming president.

In 2005, the Supreme Court had upheld the Bush framework under Chevron, but made it clear the old, traditional, framework was also a reasonable interpretation of the statute, and one that gave the FCC clear authority over broadband communications services.

In early April of this year, the D.C. Circuit told the FCC that the Bush policies, while a reasonable framework under Chevron, left the FCC with very-little-to-no authority over broadband. Under the Bush framework, the FCC could not even stop the largest cable company from (secretly) blocking valuable and popular Internet applications. This was a pretty stark violation of the open Internet, which the Bush framework couldn’t reach.

The logical next step, in the wake of these cases, is self-evident: go back to the old pre-Bush framework, the framework that (even) Justice Scalia and two other Justices believed to be the unambiguous intention of Congress. That framework is found in Title II of the Communications Act, designed for all two-way communications networks.

The FCC imposes this framework on many broadband services already: business networks, middle mile networks, and many rural Internet networks. Title II even governs supposedly competitive, largely deregulated phone services, like long distance calling and mobile phone service. The FCC also has the power under Title II to forbear from any really problematic, onerous regulations, and tailor regulations to individual networks and circumstances.

Fixing the Bush mistakes should be a no-brainer for this administration, and it would clear the path for network neutrality, universal service for broadband, privacy protections, network security policies, and a host of other essential issues.

But recent press accounts suggest the political pressure of the few, powerful phone and cable carriers might be too much for the politics of hope. Organized money may defeat organized people. I find it hard to believe, but public choice theory suggests that the incumbent corporate insiders will win. And that will transform how we participate in public discourse, volunteer for campaigns, create culture, dissent politically. That will act to close off many of the most important channels of political change in our nation, and the world.

The principle of network neutrality is—as Jack and Yochai and others have written—one of the most important principles for ensuring freedom of speech in the 21^st Century. If this issue goes the wrong way, it’s not only a broken political promise, but disastrous policy for our democracy.
Posted 12:59 PM by Marvin Ammori [link] (6) comments