Reason Magazine - Staff > Jacob Sullum

Missing Pedophiles

jsullum@reason.com (Jacob Sullum) — Tue, 13 May 2008 12:00:00 EDT

In March, London’s Daily Mail reported that a British elementary school had obscured the heads of children in group photographs on the school’s website with oval smiley faces, “apparently to protect them from paedophiles.” The widespread anxieties underlying that bizarre incident are almost entirely off the mark, according to a recent review of the evidence concerning Internet-related sex crimes.

Writing in the February-March American Psychologist, Janis Wolak and three colleagues at the University of New Hampshire’s Crimes Against Children Research Center conclude that “the stereotype of the Internet child molester who uses trickery and violence to assault children is largely inaccurate.” In their survey of more than 2,500 law enforcement agencies, “99 percent of victims of Internet-initiated sex crimes…were 13 to 17 years old, and none were younger than 12.” The cases typically involved teenagers who knew they were talking to adults online, agreed to meet them specifically for sex, and were not forced or threatened with violence.

In short, Internet-related sex crimes are overwhelmingly cases of statutory rape rather than child molestation.

Based on telephone surveys of 10-to-17-year-old Internet users, Wolak et al. also question commonly held beliefs about what kinds of online behavior expose teenagers to the risk of such encounters. Neither posting personal information nor participating in social networking sites such as Facebook or MySpace was by itself associated with victimization. Instead the researchers found that “youths who interacted online with unknown people and also engaged in a high number of different risky online behaviors” (such as “having unknown people on a buddy list, talking online to unknown people about sex, seeking pornography online, [and] being rude or nasty online”) were “much more likely to receive aggressive sexual solicitations than were youths who interacted online with unknown people but restrained their risky behaviors.”

The idea that the Internet has fostered a “shocking increase in the sexual exploitation of children,” as Newsweek put it in 2001, also appears to be unfounded. Wolak and her colleagues estimate that Internet-related sex crimes account for something like 7 percent of all statutory rapes. They note that “several sex crime and abuse indicators have shown marked declines during the same period that Internet use has been expanding.”

The Bipartisan Folly of Farm Subsidies

jsullum@reason.com (Jacob Sullum) — Wed, 14 May 2008 07:00:00 EDT

"We need to stand up to the special interests, bring Republicans and Democrats together, and pass the farm bill immediately," Barack Obama declared last November. It was a weird thing to say, since the farm bill, which subsidizes an arbitrarily chosen section of the economy at the expense of taxpayers and consumers in general, is special-interest legislation by definition.

The latest version, which President Bush has promised to veto, includes tax breaks for racehorse owners, "marketing aid" for fruit and vegetable growers, research funding for organic farmers, enhanced price supports for domestic sugar producers, increased subsidies for dairy farmers, a $170 million earmark for the salmon industry, and billions of dollars in automatic payments and "permanent disaster assistance" for corn, wheat, cotton, rice, and soybean growers. Take that, special interests!

Less than a month ago, the Associated Press reported that "it's not a good year for a farm bill," what with surging food prices, record farm income, a tight federal budget, and a resistant president unconcerned about getting re-elected. But in the logrolling culture of Washington, the solution to wasteful, unjustified spending is more wasteful, unjustified spending.

"This is truly bipartisan legislation," says Rep. Bob Goodlatte (R-Va.), the senior Republican on the House Agriculture Committee. "There was give-and-take on all sides."

Mostly take. In response to fruit and vegetable farmers who have long complained about payments for other crops, the five-year, $300 billion bill expands existing subsidies while paying off the produce growers. In response to food price inflation, the bill continues the price supports and ethanol subsidies that contribute to it while boosting spending on food stamps. It even manages to combine two kinds of farm folly in one program, requiring the government to protect domestic sugar producers by buying imported sugar and selling it at a loss to ethanol refiners.

The bill's supporters are bragging about a new rule that would bar payments to individual farmers earning more than $750,000 a year and couples earning more than $1.5 million. That modest change is expected to affect about 2,000 subsidy recipients, less than 1 percent of the total. But it highlights the extent to which agricultural subsidies are a welfare program for rich people.

Last summer Obama's presidential campaign boasted that the Illinois senator "expressed his support" for "reducing the number of multimillionaires who are eligible for farm bill subsidies." While that sounds better than Hillary Clinton's wholehearted endorsement of the farm bill, which the New York senator says will "help revitalize rural America" and "provide a safety net for our family farms," it's a pretty sad state of affairs when self-styled reformers aspire merely to reduce taxpayer-funded payments to multimillionaires.

Not all farmers are rich, but as a group they are better off than the people footing the bill for their subsidies, with a median income of $55,000 in 2006, compared to the national median of $48,000, and median wealth about five times the national median. Heritage Foundation analyst Brian Riedl notes that most subsidies "go to large commercial farms, which report an average income of $200,000 and a net worth of nearly $2 million."

Riedl estimates that farm subsidies cost Americans $25 billion a year in taxes and another $12 billion in higher food prices. According to a Cato Institute study, the opportunity cost of agricultural support during the last two decades (i.e., the amount we'd have if the money had been invested instead of squandered) is more than $1.7 trillion.

John McCain is the only one of the three remaining major-party presidential candidates who takes a stand against this regressive, market-distorting, trade-disrupting scam. The Arizona senator, who has long opposed agricultural subsidies, recently told voters (in Iowa, no less) that if he were president he'd veto the farm bill because "the subsidies are unnecessary."

By and large, though, Obama is right that farm subsidies "bring Republicans and Democrats together." It's the sort of unity that causes one to lose hope.

To Catch a Leaf

jsullum@reason.com (Jacob Sullum) — Wed, 07 May 2008 07:00:00 EDT

In 2001, shortly before Michael Bloomberg became a candidate for mayor of New York, an interviewer asked him if he'd ever smoked marijuana. "You bet I did," he said, "and I enjoyed it."

Yet as mayor, Bloomberg has presided over what a recent report from the New York Civil Liberties Union (NYCLU) calls a "marijuana arrest crusade," seeking to punish pot smokers for an activity he enjoyed with impunity. This little-noticed crackdown, which began under Rudy Giuliani, has disproportionately affected young black and Hispanic men, engendering resentment, distrust of the police, and disrespect for the law.

While marijuana arrests have risen between two- and three-fold nationwide since 1990, the increase in New York has been much more dramatic. "From 1997 to 2006," sociologist Harry Levine and drug policy activist Deborah Small note in the NYCLU report, "the New York City Police Department arrested and jailed more than 353,000 people simply for possessing small amounts of marijuana. This was eleven times more marijuana arrests than in the previous decade."

Based on their analysis of arrest data and their interviews with police, arrestees, and public defenders, Levine and Small conclude that the pot busts are largely a byproduct of the NYPD's aggressive "stop and frisk" tactics. The U.S. Supreme Court has ruled that police may briefly detain people they suspect of involvement in criminal activity and, as a precautionary measure, pat them down for weapons. Taking advantage of this Fourth Amendment loophole, New York City police stopped and frisked people more than half a million times in 2006.

In the vast majority of cases, these stops do not result in arrests. But sometimes people are carrying small amounts of marijuana. Since police cannot legally search for drugs without probable cause, Levine and Small found, they typically trick or intimidate people into revealing their pot, at which point they can be arrested.

Such trickery not only exposes the contraband; it changes the nature of the offense. Under state law merely possessing a small amount of marijuana (up to 25 grams, about seven-eighths of an ounce) is a citable offense similar to a traffic violation. But having marijuana "in public view" is a misdemeanor.

The NYPD makes about 35,000 such arrests each year. Although marijuana possession is either the only or the most serious charge in these cases, the arrestees are nevertheless handcuffed and taken to a police station, where they are fingerprinted and photographed, and they usually spend a night in jail, an uncomfortable, degrading, and often frightening experience.

Contrary to what you might expect, Levine and Small found that people arrested for marijuana possession in New York generally are not smoking pot in public. "Before being approached by the police," they note, "most people arrested for misdemeanor marijuana possession...were actually not guilty of what they were charged with."

Why do police waste time and resources manufacturing crimes? Levine and Small note that busting pot smokers is a relatively safe and easy way to pad arrest figures, which creates the illusion of productivity, and generate overtime pay, a practice known as "collars for dollars."

From the collars' perspective, getting arrested for a trivial, victimless offense, which saddles them with criminal records that can impair their ability to obtain an education and make a living, is humiliating and embittering. It is especially rankling because police seem to be targeting poor black and Hispanic men for treatment that would not be tolerated if it were aimed at affluent white New Yorkers.

Survey data indicate that among 18-to-25-year-olds, the age group where the pot busts are concentrated, whites are more likely than blacks or Hispanics to smoke marijuana. Yet Levine and Small found that in New York blacks and Hispanics are, respectively, five and three times as likely to be arrested for marijuana possession.

For pot smokers caught in the NYPD's dragnet, is Bloomberg's position on marijuana—"I enjoyed it; you'd better not"—hard to accept? You bet it is.

Mandatory Niceness

jsullum@reason.com (Jacob Sullum) — Fri, 11 Apr 2008 12:00:00 EDT

In January an officer of the Alberta Human Rights and Citizenship Commission interrogated the Canadian journalist Ezra Levant about his decision to reprint the notorious Muhammad cartoons that originally appeared in the Danish newspaper Jyllands-Posten. Levant, the former publisher of the Western Standard, did not try to ingratiate himself. He called the commission “a sick joke” and dared the “thug” across the table to recommend that he face a hearing for offending Muslims.

Levant wanted to be convicted, since that would give him a chance to challenge the censorship that Canadian human rights commissions practice in the guise of fighting discrimination. “I do not want to be excused from this complaint because I was reasonable,” he told the officer. “It is not the government’s authority to tell me whether or not I’m reasonable.” That position has attracted broad support in Canada, where editorialists, columnists, activists, and legislators from across the political spectrum have criticized the commissions for threatening freedom of speech.

The national and regional commissions were established in the 1970s to vet complaints about illegal discrimination in employment, housing, and the provision of goods and services. But many of them have broad, ambiguous legal mandates that can be used to target controversial speech. Alberta’s Human Rights, Citizenship, and Multiculturalism Act, for example, prohibits publishing anything that “is likely to expose a person or class of persons to hatred or contempt.”

Syed Soharwardy, president of the Islamic Supreme Council of Canada, claimed Levant did that by running the Muhammad cartoons. “Publishing of cartoons in the Western Standards [sic] is in fact spreading hate against me,” Soharwardy scrawled on a complaint form he submitted to the commission in February 2006. He also complained that “Mr. Ezra Levant insulted me” when the two debated the cartoon controversy on CBC Radio. Until mid-February, when he announced that he planned to withdraw his complaint, Soharwardy was demanding an apology. Human rights commissions can impose fines and gag orders as well.

Meanwhile, the Canadian, Ontario, and British Columbia human rights commissions are considering similar complaints against Maclean’s magazine and the journalist Mark Steyn over an October 2006 article adapted from Steyn’s book America Alone. The Canadian Islamic Congress claims Steyn “subjects Canadian Muslims to hatred and contempt” and harms their “sense of dignity and self-worth” by worrying about high Muslim birth rates. Levant notes that even if a complaint is dismissed, responding to it requires “thousands of dollars in lawyer’s fees” and “an enormous amount of time,” which encourages journalists to steer clear of touchy subjects.

Latter-Day Taint

jsullum@reason.com (Jacob Sullum) — Wed, 30 Apr 2008 07:00:00 EDT

I'm not quite as old-fashioned as the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), which hews to the early-marriage customs of the 19th century and the polygamous practices of biblical times. But I'm old-fashioned enough to believe the government needs a good reason to pull a crying, clinging child away from her mother and hand her over to the care of strangers.

The possibility that the child might marry an older man 10 or 12 or 14 years from now does not cut it. Citing that long-term, speculative danger to justify the certain, immediate damage it has done by forcibly separating hundreds of children from their parents, the Texas Department of Family and Protective Services has violated its duty to take such extreme measures only when there's no other way to prevent imminent harm.

The department took custody of 463 minors who were living at the FLDS church's Yearning for Zion (YFZ) Ranch in Eldorado after an April 3 raid that was based on an abuse report police believe was a hoax. On Monday state officials said the children, who are now living in group homes or shelters, include 53 girls between the ages of 14 and 17, of whom 31 are pregnant or have children.

I don't know whether to believe that. Texas officials have proven unreliable even on such basic questions as the justification for the raid, which was a report of physical abuse from a 16-year-old YFZ resident who apparently does not exist, and the number of children seized, a figure that was revised yet again this week. Just a few days ago, the number of underage mothers was said to be 20.

It's not clear how the government determined the ages of these girls. It says many who claimed to be adults were in fact minors, while FLDS members say many of the girls the state describes as minors are in fact adults.

Furthermore, the age of consent for sex in Texas is 17, while the minimum age for marriage, with parental approval, is 16 (raised in 2005 from 14 with the FLDS in mind). Hence a pregnant 16- or 17-year-old is not necessarily evidence that any laws have been broken.

Even by the government's account, 463 children were forcibly removed from their homes because 7 percent of them may have been victims of sexual abuse. Although there's no evidence that boys or prepubescent girls were abused at YFZ, the minors in state custody include 213 boys and about 130 children under the age of 5.

What is the state's rationale for taking girls who were not pregnant or mothers along with those who were, for taking boys along with girls, and for taking infants, toddlers, and preschoolers along with teenagers? In an affidavit, it asserts "a pervasive pattern and practice of indoctrinating and grooming minor female children to accept spiritual marriages to adult male members of the YFZ Ranch resulting in them being abused." As for the boys, "after they become adults, [they] are spiritually married to minor female children and engage in sexual relationships with them resulting in them becoming sexually [sic] perpetrators."

In short, the whole FLDS culture is sick and corrupt, so anyone raised in that environment is ipso facto a victim of abuse. This theory of collective guilt, which was accepted by Judge Barbara Walther after a chaotic and cursory mass hearing on April 17, is the antithesis of the individualized risk assessment that is supposed to justify taking a child from his parents.

Some YFZ residents say they do not approve of marriage before the legal age of consent, while others say they do not practice polygamy at all. Yet all were tarred with the same broad brush, based on a principle that church attorney Rod Parker aptly summed up this way: "If you're a member of this religious group, then you're not allowed to have children."

Drug Policy, from Scratch

jsullum@reason.com (Jacob Sullum) — Fri, 25 Apr 2008 16:30:00 EDT

The ideal drug policy would apply to the currently illegal intoxicants the same distinctions we routinely apply to alcohol: between children and adults, between use and abuse, between abuse that harms only the user and abuse that harms others.

Selling drugs to minors should remain illegal. But adults should be free to decide for themselves what goes into their bodies, provided they do not violate anyone else's rights in the process.

Read the whole column at LATimes.com.

Think of It As a Lifectomy

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 07:00:00 EDT

In his recent Supreme Court opinion upholding Kentucky's execution method, Chief Justice John Roberts says the state's lethal injection procedure passes constitutional muster because it does not pose "a substantial risk of serious harm." You might think serious harm would be hard to avoid with a procedure that's designed to take someone's life.

Roberts, of course, is not talking about the harm that inevitably occurs when someone dies; he is talking about the possibility of pain on the way to that final destination. This strange fastidiousness about making murderers as comfortable as possible when we kill them suggests that capital punishment in this country is ultimately doomed.

It's not doomed because it violates the Eighth Amendment's prohibition of "cruel and unusual punishments," contrary to what Justice John Paul Stevens now seems to think. As Justices Antonin Scalia and Clarence Thomas point out in their concurring opinions, a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone's life without due process) can hardly violate the Constitution.

No, capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood. On balance, that is probably a good thing.

This discomfort with executions is reflected in what initially seems to be a needlessly complicated lethal injection process. In Kentucky, as in the vast majority of the 36 states with death penalties, condemned prisoners receive three different drugs: sodium thiopental, a barbiturate that would be fatal on its own in a large enough dose, to knock them out; pancuronium bromide to paralyze their muscles; and potassium chloride to stop their hearts.

The Eighth Amendment challenge to this procedure was based on the possibility that a prisoner might not get enough of the barbiturate to be fully unconscious. In that case, he would experience suffocation from the pancuronium bromide and severe pain from the potassium chloride without being able to communicate his suffering.

One solution to this potential problem, recommended by the two Kentucky murderers who brought the case, is to eliminate the pancuronium bromide so that the illusion of unconsciousness won't be mistaken for the real thing. In his opinion, Roberts cites two reasons why a state might nonetheless decide to continue using the paralytic agent.

"First," he writes, "it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death."

It's clear from these justifications that the state is trying to prevent discomfort not in the condemned prisoner (who, after all, is supposed to be unconscious) but in the people who witness the execution and, by extension, the general public. "Preserving the dignity of the procedure" is code for maintaining the illusion that a man the government executes is really just undergoing a medical procedure with a very high risk of fatal complications.

In the ebb and flow of American death penalty fashions, from hanging and firing squad through electrocution and the gas chamber to lethal injection, Roberts sees "an earnest desire to provide for a progressively more humane manner of death." I see an earnest desire to soothe an increasingly squeamish public.

As Fordham University law professor Deborah Denno has noted, the execution methods that are less unpleasant to watch are not necessarily less painful. "To me," she told The New York Times a few months ago, "the firing squad is the most humane and perceived to be the most brutal."

Around the same time, the Chinese government said it planned to switch from executions by gunshot to executions by lethal injection, which "is considered more humane," according to an official of the Supreme People's Court. Should that count as progress?

I Don't Want Yoo to Show Them the Way

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 07:00:00 EDT

According to John Yoo, the president's powers under the Constitution are so broad that the Constitution itself cannot restrain them. In a recently declassified 2003 memo, the former Justice Department official asserted that Congress, despite its Article I powers to "make rules concerning captures on land and water" and "for the government and regulation of the land and naval forces," has no business regulating the treatment of military prisoners. Yoo also cited a 2001 memo in which he had concluded that "the Fourth Amendment had no application to domestic military operations."

Compared to Yoo, all three of the remaining major-party candidates for president sound moderate when they talk about executive power. But Barack Obama is the one who seems to care most about restoring the rule of law and the separation of powers after eight years of an administration that has sorely abused both.

Even the Justice Department has backed away from Yoo's maximalist position, although exactly how far isn't clear. In Senate testimony last week, Attorney General Michael Mukasey repeatedly dodged the question of whether he thinks the Pentagon is free to conduct unreasonable searches and seizures.

Such immunity from the Fourth Amendment would allow not just warrantless surveillance of international communications involving people in the U.S. but monitoring of purely domestic phone calls and email as well. Indeed, it would allow warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.

Yet the strongest reassurance Mukasey could offer was to say that "the Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime." Asked specifically whether that means it applies to "domestic military operations," he said, "I'm unaware of any domestic military operations being carried out today."

Mukasey's evasiveness is especially troubling in light of his refusal during his confirmation hearings to acknowledge that Congress has the constitutional authority to restrict National Security Agency wiretaps. Unlike Yoo, he did at least concede that the president is bound to obey a congressional ban on torture.

That is the area where John McCain has most clearly distinguished himself from the Bush administration. Last December, in response to a Boston Globe candidate survey focusing on executive power, the Arizona senator also said the president is not free to violate statutory restrictions on wiretaps, and he rejected the use of signing statements as a way of reserving the right to flout laws. But he took a broader view than the other candidates of the president's authority to detain "enemy combatants," and he declined to identify areas where the Bush administration has overstepped its constitutional authority.

Obama, by contrast, gave half a dozen detailed examples. In general, the Illinois senator's answers to the Globe's questions were direct, thoughtful, and complete, apparently reflecting a sincere determination to limit his own power if elected.

After the election, of course, such promises may not be worth much. But on that score I worry more about Hillary Clinton. The New York senator's answers to the Globe survey, though less detailed than Obama's, were similar in substance. I just find it hard to believe them.

Clinton agreed, for example, that the president has to seek congressional authorization before attacking another country, except in response to an "imminent threat." Yet she has bragged about urging her husband to bomb Serbia as part of an unauthorized war that had nothing to do with national defense.

Although Clinton now claims to have a modest view of presidential power, she was singing a different tune a few years ago. "I'm a strong believer in executive authority," she told George Stephanopoulos of ABC News in 2003. "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority." With the War on Terror as a rationale, her wish could be her command.

FDA-Approved Cancer Sticks

jsullum@reason.com (Jacob Sullum) — Wed, 09 Apr 2008 07:00:00 EDT

Last week the House Energy and Commerce Committee overwhelmingly approved legislation that would authorize the Food and Drug Administration to regulate tobacco products. Since the FDA is usually portrayed as a benevolent (if occasionally sleepy) watchdog, you might assume the bill is all about consumer protection. But it's actually aimed at consumer prevention, which is not quite the same thing.

A consumer protection bill that reduced competition, raised prices, restricted choice, blocked information, and made products more hazardous could not really be counted as a success. Yet the Family Smoking Prevention and Tobacco Control Act, which has broad support in both houses of Congress, promises to do all these things in an effort to discourage consumption.

The act imposes new regulatory burdens and advertising restrictions that will help industry leader Philip Morris, which supports the bill, maintain its market-share advantage over smaller cigarette manufacturers, which oppose the bill. The compliance costs and reduced competition are likely to raise prices, which counts as an advantage if your goal is "smoking prevention" but a disadvantage if your goal is to buy a pack of cheap smokes.

Likewise, the bill restricts variety, which consumers like but public-health paternalists do not. Under the act, smokers will be allowed to choose any cigarette flavor they like, as long as it's menthol (which happens to be the one flavor Philip Morris uses). Although people above the age of 18 have been known to enjoy the occasional clove cigarette, Camel Crema, or Kool Caribbean Chill, these flavored varieties have been deemed too kid-friendly and therefore inconsistent with the goal of smoking prevention.

While added flavors (except for menthol) are unambiguously evil, toxins and carcinogens may have a positive role to play if they discourage people from smoking by raising the specter of cancer, heart disease, and emphysema. Hence the bill instructs the FDA to approve a "modified risk tobacco product" only if it would "benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products."

To make that judgment, the FDA is supposed to consider "the increased or decreased likelihood that persons who do not use tobacco products will start using the tobacco product that is the subject of the application" as well as "the increased or decreased likelihood that existing users of tobacco products who would otherwise stop using such products will switch to the tobacco product that is the subject of the application." In other words, the FDA could decide to keep a demonstrably safer cigarette off the market because it might attract new smokers or dissuade current smokers from quitting.

Worse, an existing product can be deemed a "modified risk tobacco product" subject to FDA approval if its manufacturer indicates on the package, in advertising, or in any other forum that it's less hazardous than cigarettes. If an executive at a smokeless tobacco company mentioned in a TV interview or an op-ed piece that his products were much safer than cigarettes, which is indisputably true, those products could suddenly be considered illegal.

Here the concern is not fraud but accurate information that consumers might "misuse" (by, for example, switching from cigarettes to oral snuff instead of giving up tobacco altogether). As far as this bill's authors are concerned, you can't handle the truth.

The bill not only authorizes the prohibition of safer tobacco products and the censorship of potentially lifesaving information about relative risks; it gives the FDA permission to make cigarettes more dangerous by ordering reductions in nicotine content. Such a mandate, aimed at making cigarettes less attractive to new smokers, would force current smokers to absorb higher levels of toxins and carcinogens to obtain their usual doses of nicotine.

According to its supporters, this bill, backed by the biggest tobacco company, will enable the FDA to protect smokers from Big Tobacco. Who will protect smokers from the FDA?

The School Crotch Inspector

jsullum@reason.com (Jacob Sullum) — Wed, 02 Apr 2008 07:00:00 EDT

There are two kinds of people in the world: the kind who think it's perfectly reasonable to strip-search a 13-year-old girl suspected of bringing ibuprofen to school, and the kind who think those people should be kept as far away from children as possible. The first group includes officials at Safford Middle School in Safford, Arizona, who in 2003 forced eighth-grader Savana Redding to prove she was not concealing Advil in her crotch or cleavage.

It also includes two judges on the U.S. Court of Appeals for the 9th Circuit, who last fall ruled that the strip search did not violate Savana's Fourth Amendment rights. The full court, which recently heard oral arguments in the case, now has an opportunity to overturn that decision and vote against a legal environment in which schoolchildren are conditioned to believe government agents have the authority to subject people to invasive, humiliating searches on the slightest pretext.

Safford Middle School has a "zero tolerance" policy that prohibits possession of all drugs, including not just alcohol and illegal intoxicants but prescription medications and over-the-counter remedies, "except those for which permission to use in school has been granted." In October 2003, acting on a tip, Vice Principal Kerry Wilson found a few 400-milligram ibuprofen pills (each equivalent to two over-the-counter tablets) and one nonprescription naproxen tablet in the pockets of a student named Marissa, who claimed Savana was her source.

Savana, an honors student with no history of disciplinary trouble or drug problems, said she didn't know anything about the pills and agreed to a search of her backpack, which turned up nothing incriminating. Wilson nevertheless instructed a female secretary to strip-search Savana under the school nurse's supervision, without even bothering to contact the girl's mother.

The secretary had Savana take off all her clothing except her underwear. Then she told her to "pull her bra out and to the side and shake it, exposing her breasts," and "pull her underwear out at the crotch and shake it, exposing her pelvic area." Sometimes it's hard to tell the difference between drug warriors and child molesters.

"I was embarrassed and scared," Savana said in an affidavit, "but felt I would be in more trouble if I did not do what they asked. I held my head down so they could not see I was about to cry." She called it "the most humiliating experience I have ever had." Later, she recalled, the principal, Robert Beeman, said "he did not think the strip search was a big deal because they did not find anything."

The U.S. Supreme Court has held that a public school official's search of a student is constitutional if it is "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place." This search was neither.

When Wilson ordered the search, the only evidence that Savana had violated school policy was the uncorroborated accusation from Marissa, who was in trouble herself and eager to shift the blame. Even Marissa (who had pills in her pockets, not her underwear) did not claim that Savana currently possessed any pills, let alone that she had hidden them under her clothes.

Savana, who was closely supervised after Wilson approached her, did not have an opportunity to stash contraband. As the American Civil Liberties Union puts it, "There was no reason to suspect that a thirteen-year-old honor-roll student with a clean disciplinary record had adopted drug-smuggling practices associated with international narcotrafficking, or to suppose that other middle-school students would willingly consume ibuprofen that was stored in another student's crotch."

The invasiveness of the search also has to be weighed against the evil it was aimed at preventing. "Remember," the school district's lawyer recently told ABC News by way of justification, "this was prescription-strength ibuprofen." It's a good thing the school took swift action, before anyone got unauthorized relief from menstrual cramps.

© Copyright 2008 by Creators Syndicate Inc.

Pirate Island

jsullum@reason.com (Jacob Sullum) — Fri, 07 Mar 2008 08:00:00 EST

In 2003 the tiny Caribbean nation of Antigua and Barbuda (population: 69,000) argued that America’s restrictions on online gambling violated international trade agreements. When the World Trade Organization (WTO) ruled in the islands’ favor, Antigua was widely described as “the mouse that roared.” In December that roar changed to a whimper as an arbitration panel awarded the country compensation far lower than the amount it had sought.

Antigua, home to several online casinos and sports books, had argued that the U.S. was impermissibly discriminating against foreign-based gambling websites by trying to stop them from serving Americans while continuing to tolerate some forms of domestic Internet gambling. The WTO agreed, saying the U.S. owed Antigua compensation for the economic damage caused by shutting off the American gambling market.

Such compensation generally comes in the form of trade sanctions. Given the relative size of the two countries involved in this dispute, Antigua argued that the only effective approach would be suspension of its obligation to respect U.S. intellectual property rights, which would allow it to recoup its losses in the gambling market by selling unlicensed CDs, DVDs, and software. The WTO arbitration panel agreed, but it limited such sales to $21 million a year, 42 times the $500,000 award suggested by the U.S. but less than one-hundredth the $3.4 billion Antigua had sought. Mark Mendel, the attorney representing Antigua, called the award “absurdly low.”

Meanwhile, the U.S. has negotiated separate deals with the European Union, Japan, and Canada, which were inspired by Antigua’s example to file gambling-related WTO complaints of their own. Those deals involve expanded access to the U.S. postal/courier, research and development, and storage/warehouse sectors.

One sector that won’t be opened is online gambling. Rather than changing its gambling laws so they comport with its trade commitments, the U.S. government has said it will change its trade commitments so they comport with its gambling laws, a move that Rep. Shelley Berkley (R-Nev.) calls “the trade equivalent of taking our ball and going home.”

No Bad Drugs

jsullum@reason.com (Jacob Sullum) — Thu, 20 Mar 2008 08:30:00 EDT

High Society: How Substance Abuse Ravages America and What to Do About It, by Joseph A. Califano Jr., New York: Public Affairs, 270 pages, $26.95

The Cult of Pharmacology: How America Became the World’s Most Troubled Drug Culture, by Richard DeGrandpre, Durham, N.C.: Duke University Press, 294 pages, $24.95

On the opening page of High Society, which aims to explain “how substance abuse ravages America,” Joseph Califano declares that “chemistry is chasing Christianity as the nation’s largest religion.” Although it is not always easy to decipher Califano’s meaning in this overwrought, carelessly written, weakly documented, self-contradictory, and deeply misleading anti-drug screed, here he seems to be saying that opiates are the religion of the masses. Americans, he implies, are seeking from psychoactive substances the solace they used to obtain from faith in God, and better living through chemistry is nearly as popular as better living through Christ.

That claim, like many Califano makes, is unverifiable, and it does not seem very plausible. Americans may be less religious than they used to be, but large majorities still say they believe in God and identify with specific faiths, making the U.S. much more religious than other Western countries, which tend to have substantially lower drug use rates. Although Americans have a bewildering array of psychiatric medications to choose from nowadays (with permission from a doctor), they smoke a lot less than they did in the 1960s and drink less than they did a century ago, when they also could freely purchase patent medicines containing opium, cocaine, and cannabis. If the devout are less inclined than the doubters to use mood-altering drugs, how is it that mostly Mormon Utah leads the country in antidepressant prescriptions? And if chemistry and Christianity are locked in competition, what are we to make of Jesus’ water-into-wine miracle, or of the Native American Church, Uniao do Vegetal, and other groups that combine Christianity with psychedelic sacraments?

Already I have put more thought into the alleged connection between faithlessness and drug use than Califano did. And so it is with the rest of the book. A proper debunking would require more than the 186 pages of text that Califano, a domestic policy adviser to Lyndon Johnson and secretary of health, education, and welfare in the Carter administration, squeezes out of conversations with politicians and old reports from the Center on Addiction and Substance Abuse (CASA), the prohibitionist propaganda mill he founded and heads. Although CASA brags about its affiliation with Columbia University, the school has less cause to be proud of that relationship, given the center’s sloppy research and hyperbolic rhetoric. In a 2002 report that attracted wide publicity, CASA issued “a clarion call for national mobilization” against “America’s underage drinking epidemic,” claiming that “Children Drink 25 Percent of Alcohol Consumed in the U.S.” Not only did these “children” include 18-to-20-year-olds (a.k.a. “adults”), but it turned out CASA’s estimate was off by a factor of more than two.

Yet Califano is worth taking seriously. He is a leading exemplar of the moralistic pseudoscience that Richard DeGrandpre dissects in The Cult of Pharmacology, an insightful, historically informed critique of the ideas that guide the war on drugs. DeGrandpre, an independent scholar with a Ph.D. in psychopharmacology and a former fellow at the National Institute on Drug Abuse, decries “the modern mythologizing of drugs as angels and demons” that underlies our “bewildering and often brutal differential system of prohibition.” Califano, by contrast, is committed to defending the arbitrary distinctions built into our drug laws.

Califano, who since his time in the Carter administration has railed against cigarettes with all the zeal you’d expect from a former three-pack-a-day smoker, is perceptive enough to recognize that legal drugs are not necessarily angels. When he talks about the promiscuous use of stimulants to control inattentive, unruly schoolchildren or the routine prescription of mood-altering drugs to smooth “the changing moods that mark human nature,” he sounds a bit like DeGrandpre, who wrote a book called Ritalin Nation and is unsparing in his criticism of the psychiatric profession and the pharmaceutical industry.

What Califano fails to understand is that every drug, regardless of its current legal status, is potentially an angel or a demon. DeGrandpre builds upon the insights of the alternative medicine guru Andrew Weil, who first made his name with books about drugs and altered states of consciousness. “Any drug can be used successfully, no matter how bad its reputation, and any drug can be abused, no matter how accepted it is,” Weil wrote in his 1983 book From Chocolate to Morphine (co-authored by Winifred Rosen). “There are no good or bad drugs; there are only good and bad relationships with drugs.” While Califano acknowledges the importance of context in determining what constitutes abuse of alcohol and prescription drugs, he insists that any use of currently illegal drugs is abuse by definition. “Drugs are not dangerous because they are illegal,” he says. “They are illegal because they are dangerous.”

This line, popular among drug warriors, misconstrues an argument against prohibition. The point is not that prohibition causes all the hazards associated with drug use but that it compounds those hazards by exposing users to the unreliable quality, unpredictable doses, and violence of the black market (not to mention the risk of arrest). Leaving aside the question of how prohibition makes matters worse, it is untenable to argue that illegal drugs are uniquely dangerous, since every potential problem they pose is also posed by alcohol, a substance that Califano says he does not want to ban.

The argument that drugs “are illegal because they are dangerous” is especially hard to make with respect to marijuana, which is by far the most popular illegal intoxicant, one that half of American adults born after World War II have tried. The worst risk that marijuana smokers face is getting arrested, a fact Califano tries to obscure through the time-honored prohibitionist tactics of focusing on children, conflating correlation with causation, and obscuring the distinction between short-term and long-term effects. In the 1980s, Califano says, “we seemed to discover” (an odd but appropriate way of putting it) “that marijuana might not be as benign as kids and permissive parents thought.” How could smoking pot be no big deal in the ’60s and ’70s, when the baby boomers were in high school and college, then suddenly become a big deal in the ’80s and ’90s, when their children were? Might this shift reflect the natural tendency of parents to be alarmed by their children’s rebellious behavior, even when it’s no worse than what they themselves did without regret as teenagers?

Of course not. Califano wants parents to know there’s a firm scientific basis for their hypocrisy. “Today’s teens’ pot is not their parents’ pot,” he explains. “It is far more potent.…The average levels of THC jumped from less than 1 percent in the mid-1970s to more than 7 percent in 2005.” Since the potency threshold for distinguishing cannabis from a placebo in experiments is roughly 1 percent, Califano is in effect asserting that people who smoked pot in the ’60s and ’70s generally did not get high as a result. If so, it’s hard to fathom how “pot was becoming the hottest high on college campuses” by the end of the ’60s, as Califano reports elsewhere in the book. In fact, as sociologist Lynn Zimmer and pharmacologist John P. Morgan show in their 1997 book Marijuana Myths, Marijuana Facts, claims that Mom and Dad’s pot was indistinguishable from ditchweed are based on low-quality, nonrepresentative samples that probably lost their THC content while in storage.

Even if average THC content has not risen seven-fold (or 30-fold, as drug czar John Walters claimed in 2002), it no doubt has increased significantly as marijuana growers, especially indoor growers in the U.S., have learned to produce a better product. The average THC concentration of seized cannabis tested by the University of Mississippi’s Potency Monitoring Project (which relies on “convenience” samples that are not necessarily representative of the national supply) more than doubled between 1983 and 2006, from a bit under 4 percent to 8.5 percent. But the stronger pot is, the less people tend to smoke. Since the possible respiratory effects of smoking are the most serious health risk associated with marijuana, higher THC content makes marijuana less dangerous, not more so.

But “today’s marijuana is addictive,” Califano says, warning that “10 percent of those who try it will get hooked at some point in their lives.” Even taking that number at face value, it is about one-third lower than the lifetime addiction rate for alcohol, based on data from the National Comorbidity Survey.

Implicitly conceding that cannabis itself is not very dangerous, Califano makes much of marijuana’s status as a “gateway drug,” a substance that people tend to try before they use other illegal intoxicants. According to a CASA analysis of survey data from the early 1990s, he reports, “twelve- to seventeen-year-old children who used marijuana were eighty-five times more likely…to use cocaine.”

That impressive-sounding “risk ratio” reflects the fact that people very rarely use cocaine without trying marijuana first. Although he repeatedly cites such numbers as a reason to prevent people from trying marijuana, Califano concedes that “gateway statistical relationships do not necessarily establish causality,” and he quotes the Institute of Medicine’s take on the issue, which does not suggest that marijuana pharmacologically causes people to seek “harder” drugs: “People who enjoy the effects of marijuana are, logically, more likely to be willing to try other mood-altering drugs than are people who are not willing to try marijuana or who dislike its effects. In other words, many of the factors associated with a willingness to use marijuana are, presumably, the same as those associated with a willingness to use other drugs.”

Perhaps sensing that the gateway argument is not generating enough alarm, Califano warns that marijuana “adversely affects short-term memory, the ability to concentrate, emotional development, and motor skills.” By throwing in “emotional development,” he falsely implies that the memory, concentration, and motor skill impairments, which are short-term effects of intoxication, are permanent disabilities caused by smoking one joint too many.

Speaking of old prohibitionist tricks, Califano is not above scare tactics reminiscent of the “reefer madness” claims that Federal Bureau of Narcotics Director Harry J. Anslinger promoted in the 1930s. “Recent studies indicate that marijuana use increases the likelihood of depression, schizophrenia, and other serious mental health problems,” Califano writes. These studies do not show that smoking pot makes you crazy; they show that people who smoke pot, especially if they do so at early ages and in large amounts, are more likely to have “serious mental health problems.” In other words, these studies find associations, which, as Califano notes vis-à-vis the data on gateway drugs, “do not necessarily establish causality.” It could be that people with psychological problems are especially attracted to marijuana because it makes them feel better, or because they tend to act out or take risks; early use of marijuana could be a marker for psychological problems rather than a cause of them.

Having failed to explain why people should be arrested for producing, selling, and possessing marijuana when they are free to produce, sell, and possess alcoholic beverages, Califano goes on to note that all those arrests (about 830,000 in 2006 alone) don’t seem to have accomplished much. “From 1993 to 2005,” he writes, “a 107 percent increase in marijuana arrests was accompanied by a 100 percent increase in marijuana users.” Califano concludes that “something more is needed”: harsher penalties, mandatory anti-drug classes, and forced “treatment” for pot smokers.

More generally, although he claims to be recommending a “dramatic shift,” even a “revolution,” in drug policy, Califano actually wants to maintain the status quo, except with more drug treatment and better anti-drug classes. (He correctly notes that DARE, the most popular such program in American schools, “has been repeatedly found worthless.”) Califano wants to force “treatment” on people who use politically incorrect intoxicants even though he concedes “there have been few independent systematic evaluations of substance abuse treatment effectiveness.” The techniques that have not been proven effective through rigorous independent evaluations include the religiously oriented 12-step programs that Califano nevertheless wants to compel drug users to attend.

While Califano seems to favor mandatory treatment rather than jail for drug users, he says people “who dealt drugs but didn’t use them belong in prison—and for a long time.” Contrary to conventional wisdom in the drug business, then, it may be a good idea to sample your own product, so you can benefit from Califano’s curiously compartmentalized compassion.

Lest you think that Califano, a big-spending liberal Democrat, favors unproven demand-side measures at the expense of futile supply-side measures, he can also sound like the most clueless get-tough Republican, confident that we can seal our borders against the flow of drugs Americans want if only we put our minds to it. “We must mount a far more effective effort to block entry of illegal drugs into the United States and to eliminate production within the country,” he writes. “This undertaking demands the kind of attention we have committed to keeping chemical, biological, and nuclear weapons out of our nation. Marijuana, cocaine, heroin, Ecstasy, and other illegal drugs have demonstrated a far deadlier capability for mass destruction.”

Califano, who worries that “sensational media coverage” causes “popular concerns and parental fears about substance abuse” to “ricochet from drug to drug,” does not exactly strive for a restrained tone himself. Blaming cocaine for inciting “paranoia and violence,” he says the smokable version “flooded inner-city neighborhoods and kicked off a harrowing crack-related crime tsunami.” To support this claim, he cites page 245 of Paul Gahlinger’s Illegal Drugs: A Complete Guide to Their History, Chemistry, Use, and Abuse. But Gahlinger says nothing about a “harrowing crack-related crime tsunami.”

As DeGrandpre notes in The Cult of Pharmacology, Califano’s image of crack-crazed criminals was debunked more than a decade ago by the U.S. Sentencing Commission. “The media and public fears of a direct causal relation between crack and other crimes do not seem to be confirmed by empirical data,” the commission said in 1995. “Studies report that neither powder nor crack cocaine excite users to commit criminal acts and that the stereotype of a drug-crazed addict committing heinous crimes is not true for either form of cocaine.” So-called crack-related violence was in fact prohibition-related violence, arising from conflicts among black-market participants.

Other Califano claims are absurd on their face. In his lexicon, if a single teenager reports seeing a fellow student buy, use, or possess alcohol or other drugs at his school, that is enough to render the school “drug-infested.” In a 1999 report CASA said “teens who smoke marijuana are playing a dangerous game of Russian roulette,” an activity in which there is a one-in-six chance of instant death on each turn. Three years later it likened underage drinking to “a deadly round of Russian roulette.”

In High Society, Califano trots out the metaphor for another purpose. “Russian roulette is not a game anyone should play,” he informs readers, just in case they were considering it as an alternative to checkers. “Legalizing drugs not only is playing Russian roulette with children; it is also slipping a couple of extra bullets into the chamber.” Meaning that if drug prohibition were repealed, half of America’s children would die?

Califano is on even shakier ground when he suggests that the classical liberal philosopher John Stuart Mill would have approved of drug prohibition, since “Mill’s conception of freedom does not extend to the right of individuals to enslave themselves,” and “drug addiction is a form of enslavement.” We can be pretty sure Mill would not have endorsed drug prohibition on this ground, since he didn’t. In fact, he vigorously opposed alcohol prohibition as a clear violation of individual liberty.

But maybe Mill was wrong. Could drug addiction really be a form of slavery? According to Califano, it’s actually a “chronic, relapsing disease” similar to “diabetes or high blood pressure.” Which is not to say that it’s strictly a biochemical phenomenon. Addiction research, Califano says, “is also psychological, emotional, and spiritual research, since this complex disease has elements of dysfunction in all these areas.” Califano’s fondness for Alcoholics Anonymous and likeminded groups makes sense, since he, like them, views drug abuse as a medical problem with a spiritual solution.

Does it matter that Califano chooses to call drug abuse a disease? I think it does, since a disease is something that happens to people, not something that they do. It follows that the choices made by people whom others identify as addicts need not be respected, since they are not really choices at all. DeGrandpre quotes Alan Leshner, a former director of the National Institute on Drug Abuse, who declares “Addiction is not a voluntary circumstance. It’s not a voluntary behavior. It’s more than just a lot of drug use. It’s actually a different state…a state of compulsive, uncontrolled drug use.”

DeGrandpre doesn’t buy it. “The vast literature on careers in drug use flatly contradicts this perspective,” he writes in The Cult of Pharmacology. He summarizes that literature, showing that addicts commonly drift into and out of heavy use, stop or moderate their consumption on their own, and “mature out” of supposedly permanent addictions. Even the animal experiments prohibitionists cite to demonstrate the irresistible power of certain chemicals, DeGrandpre notes, actually show that drug use is “sensitive to the context in which it occurs.” When lab animals are kept in stimulating environments along with other animals, they are much less inclined to consume drugs than when they are isolated in boring environments and hooked up to a catheter.

Human drug use shows even more variation. A patient in pain or a soldier at war can use a strong narcotic for particular reasons and give it up without much trouble once those reasons no longer apply. A happy person can take or leave the same drug that a miserable person turns to every day. A person who uses a drug to excess during an especially troubled period may find that he can use it in moderation after his situation improves. Given these differences, it makes little sense to talk about a drug’s “addictiveness” as if it were a chemical property. “Used for different reasons, taken in different forms, and at different doses, the same drug can serve dramatically different ends,” DeGrandpre observes. “Drugs, their users, and the context of use all come together to produce drug outcomes.”

Since expectations affect the drug user’s experience, DeGrandpre provocatively but plausibly argues, the belief that a substance is powerfully addictive can become a self-fulfilling prophecy. “The massive use of opiates in the nineteenth century did not translate into widespread dependence and addiction,” he notes, but that was before opiates, especially heroin, acquired a reputation as irresistible and inescapable. He suggests this “placebo script,” together with prohibition and the concomitant shift in the user population from middle-class women to young men at the margins of society, made opiates look more addictive. Likewise, says DeGrandpre, exaggerating the power of nicotine (as Califano routinely does) “teaches [smokers] that it is impossible to quit.”

DeGrandpre persuasively debunks “the two core ideas of the disease model: that use leads inevitably to addiction and that addiction, without ‘treatment,’ guarantees lifelong use.” But those two ideas can be separated, as illustrated by the history of thinking about alcohol abuse. As the sociologist Harry G. Levine noted in a 1978 Journal of Studies on Alcohol article, “the idea that drugs are inherently addicting was first systematically worked out for alcohol and then extended to other substances. Long before opium was popularly accepted as addicting, alcohol was so regarded.” This was the idea that drove the temperance movement’s transition from moderation enforced by self-discipline to abstinence enforced by law: If alcohol was inherently addicting, voluntary temperance was a dangerous illusion. After the repeal of Prohibition, the view of alcoholism as a disease caused by alcohol gave way to a view of alcoholism as a condition that makes it impossible for certain susceptible individuals to drink moderately. Whatever its scientific weaknesses, this A.A.-promoted version of the disease model does not demand abstinence from all and is therefore much more compatible with a legal market in alcoholic beverages than the earlier versions.

Califano seems to accept the A.A. model of alcoholism, which concedes that most people are capable of drinking moderately. While “Just Say No” is the message children should receive with regard to illegal drugs, he says, “The message for alcohol use is more complex: No for children and teens, moderation for adults.” He never explains why “moderation for adults” is not a valid approach to, say, marijuana.

The belief that certain drugs are irredeemably evil and that the current version of the Controlled Substances Act has inerrantly identified them betrays a lack of historical understanding. Heroin originally was sold as a substitute for codeine and a cure for “morphinism.” Cocaine was touted by Sigmund Freud as a nonaddictive all-purpose tonic. After these drugs were demonized, DeGrandpre notes, psychoactive pharmaceuticals such as meprobramate (Miltown), amphetamines (Benzedrine, Dexedrine, Methedrine), barbiturates (Ambutal, Nembutal, Seconal), methaqualone (Quaalude), and the benzodiazepines (Librium, Valium, Xanax, Ativan, Halcion) followed “the same cycle of medical hype, vast nonmedical use, and new and ‘unexpected’ problems of dependency.” DeGrandpre argues that SSRI antidepressants such as Prozac are undergoing a similar re-examination.

The government’s own legal distinctions belie the idea that drugs can be neatly separated into good and bad categories. “Even methamphetamine, [which] drug czar Barry McCaffrey called ‘the worst drug to ever hit America,’ was dispensed to children by prescription until the end of the century,” DeGrandpre notes. Children diagnosed with attention deficit disorder (ADD) continue to receive Ritalin, a drug whose pharmacological action is very similar to cocaine’s, as teenagers who crush and snort their friends’ prescription pills have discovered. “If Ritalin could legally be given to millions of American children despite the fact that its effects were indistinguishable from cocaine[’s] when taken in comparable doses and via the same route of drug administration, then popular and scientific beliefs concerning these two drugs in the twentieth century were nonsensical,” DeGrandpre writes. “Either cocaine is not the inherent demon drug it was made out to be, or Ritalin is incorrigibly evil and corrupting.”

The story of pharmaceutical fashions that DeGrandpre tells highlights a fact that the psychiatric iconoclast Thomas Szasz has long emphasized: Drug prohibition is built on a foundation of mandatory prescriptions. Although Califano seems to believe Ritalin is overprescribed, he presumably would say that giving it to a child based on a valid ADD diagnosis is a legitimate use, while snorting it for fun is not. Likewise, amphetamines can legally be used with a doctor’s prescription to treat obesity, relieve depression, and keep narcoleptics and military pilots awake. But in the government’s view (and therefore in Califano’s view), if people use amphetamines on their own for essentially the same purposes—to lose weight, boost their moods, or stay alert—they are guilty of drug abuse (although I guess that was not true until 1954, when prescriptions were first required for amphetamines). In such cases, the difference between use and abuse lies not in the drug’s chemical structure or even in the user’s goal. What matters is the spell scrawled by a government-appointed medicine man who can transform demons into angels with the stroke of a pen.

Senior Editor Jacob Sullum is the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin).

Pork Three Ways

jsullum@reason.com (Jacob Sullum) — Wed, 26 Mar 2008 07:00:00 EDT

On Friday a House Appropriations Committee website was so overwhelmed by legislators' wish lists that it crashed, forcing the committee to extend the deadline for earmark requests until Monday. Most members of Congress seem to think the problem with earmarks is like the problem with the committee's server: not any particular person's demands, just all of them together.

On the face of it, the presumptive Republican presidential nominee, John McCain, and the two remaining contenders for the Democratic nomination, Barack Obama and Hillary Clinton, take a different view: All three supported a one-year moratorium on earmarks that the Senate recently rejected by a wide margin. But only McCain has taken a principled stand against the pet projects that legislators love to slip into spending bills.

"We Republicans came to power in 1994 to change government," McCain told the Riverside, California, Press Enterprise last year, "and the government changed us. That's why we lost the election: We began to value power over principle."

For the Arizona senator, ever-escalating earmarks symbolized how power corrupted the Republicans. It was not just in the most glaring ways, as when Randy Cunningham, the former Republican congressman from San Diego, exchanged defense earmarks for bribes. It was also in the far more common and accepted practice of using earmarks to reward campaign contributors and buy votes.

More fundamentally, Republicans betrayed their commitment to fiscal restraint (not to mention their responsibility to uphold the Constitution) by spending federal tax dollars on local matters. As McCain puts it on his campaign website, earmarks "divert taxpayer dollars to special interest pet projects with little or no national value." He warns that "every dollar irresponsibly spent by Congress is a dollar diverted from pressing national priorities."

I don't necessarily agree with McCain's national priorities or his notion of fiscal responsibility, which includes an open-ended commitment to an ill-considered and increasingly expensive war in Iraq. But at least he makes the point that the federal government was not created so that taxpayers in New Jersey could pay for bridges in Alaska or sweet potato research in Mississippi.

"Pork barrel spending," McCain says, "is an insult to taxpayers, a waste of public resources, and an abdication of our leaders' responsibility to be good and honorable stewards of the public treasury, for the benefit of all Americans, not just a few." He says he wants to end, not mend, earmarks, and in the meantime he declines to seek them for his own state.

By contrast, Obama seems to think the main problem with earmarks is a lack of visibility. To his credit, the Illinois senator co-sponsored (along with McCain) legislation that has made information about earmarks more readily available than ever before. He says earmark spending should be reduced, suggesting much of it is inappropriate.

Yet Obama, who is in his first term, also complains that earmarks are distributed based on seniority rather than "merit," and he worries that obtaining funding is too difficult for cities and nonprofit groups. One man's pork is another's job-generating, life-enhancing boon. Obama surely thinks all his earmark requests, which last year included money for theaters, museums, and hospitals in Chicago, are perfectly justified.

That goes quadruple for Hillary Clinton. According to Taxpayers for Common Sense, Clinton placed 10th in the Senate pork pulling competition last year, obtaining a total of $342 million in earmarks, almost four times Obama's haul. In the 2008 defense authorization bill, the New York senator received $148 million in earmarks, more than anyone except the chairman of the Senate Armed Services Committee. Her earmark total from 2002 to 2006 was $2.2 billion.

But according to Clinton, these expenditures, including money for "local artist space" in Buffalo, firefighting equipment in Oswego, "clean fuel buses" in Syracuse, the Historic Seneca Knitting Mill in Rochester, and the Eleanor Roosevelt Center in Val-Kill, are not earmarks. They are "Investments in New York," and she is "very proud" of every one.

Nonsense of Indecency

jsullum@reason.com (Jacob Sullum) — Wed, 19 Mar 2008 07:00:00 EDT

In most of the places where this column appears, the four-letter words it contains will not be spelled out. Instead they will be rendered as initial letters followed by dashes.

That custom is an example of self-restraint by newspapers and websites that do not want to offend their readers. It is not the result of government censorship, which would violate the First Amendment.

Yet as a case the Supreme Court recently agreed to hear illustrates, different rules apply to broadcast TV, where the Federal Communications Commission has decreed that anything it deems "indecent" may not be aired between 6 a.m. and 10 p.m. One day soon Americans will marvel at the bureaucratic energy expended on censorship in this one arbitrarily chosen segment of the media universe.

The FCC imposed its first fine for broadcast indecency in 1975, provoked by a mid-afternoon airing of a George Carlin monologue on a New York City radio station. In upholding the fine, the Supreme Court emphasized the distinction between Carlin's "verbal shock treatment," involving the deliberately provocative, repeated use of expletives, and "the isolated use of a potentially offensive word."

For the next three decades, taking its cue from the Court, the FCC let stray expletives slide. Then Bono got a little carried away at the 2003 Golden Globe Awards, where he pronounced his award for best original movie song "really, really fucking brilliant."

In response to complaints orchestrated by the Parents Television Council, the FCC's Enforcement Bureau said Bono's expletive was not indecent because it was not really a sexual reference and in any event was "fleeting and isolated." Five months later, the commission reversed this finding, along with its longstanding policy of overlooking isolated vulgarities. The FCC later ruled that expletive-containing comments by Cher at the 2002 Billboard Music Awards and by Nicole Richie at the 2003 Billboard Music Awards were indecent as well.

Last June, in response to a lawsuit by broadcasters, the U.S. Court of Appeals for the 2nd Circuit ruled that the FCC had violated the Administrative Procedure Act by failing to "articulate a reasoned basis for its change in policy." That decision, which the Supreme Court now has agreed to review, did not definitively address the broadcasters' constitutional objections, but the court was skeptical that they could be overcome.

The 2nd Circuit suggested that the FCC's indecency rules are unconstitutionally vague, creating "an undue chilling effect on free speech" by drawing seemingly arbitrary distinctions. A single fuck or shit on a live awards show can cost a network millions of dollars, for example, but the same words are OK in a "bona fide news interview," even if the interview is a thinly disguised promotion for one of the network's own entertainment shows.

The accidental airing of Cher's "fuck 'em" is indecent, but the deliberate airing of the very same footage in the context of a news report is not. The "repeated and deliberate use of numerous expletives" is OK in a fictional World War II movie because they are "integral" to the film yet indecent in a documentary about real-life blues musicians.

It's obvious by now that the FCC makes up the rules for acceptable speech as it goes along. In the paradigmatic example of broadcast indecency, Carlin's monologue about "the words you couldn't say on the public airwaves," there's no question that the expletives were "integral" to the routine, which was partly about the very censorship to which it became subject.

The premise underlying the Supreme Court's decision upholding the fine for Carlin's monologue was that TV and radio over the airwaves are "uniquely pervasive" and "uniquely accessible to children." With nine out of 10 U.S. homes receiving cable or satellite TV, with downloads and DVRs making a hash of "time channeling," with ratings and parental controls available across video sources, that premise is no longer tenable. The only question is how much longer the courts will pretend otherwise.

© Copyright 2008 by Creators Syndicate Inc.

Safety in Defenselessness

jsullum@reason.com (Jacob Sullum) — Wed, 12 Mar 2008 07:00:00 EDT

In a recent Wall Street Journal op-ed piece, Harvard law professor Laurence Tribe urged the U.S. Supreme Court to uphold the District of Columbia's gun restrictions, the subject of a case the Court will hear next Tuesday. Conceding that the Second Amendment guarantees an individual right to possess firearms, Tribe said that right does not rule out a decision to ban handguns while allowing "rifles, shotguns and other weapons less likely to augment urban violence."

The U.S. Court of Appeals for the D.C. Circuit disagreed, concluding that the District cannot constitutionally ban the type of gun most commonly used for self-defense. But even if Tribe is right that the Second Amendment allows D.C. to ban handguns, he is wrong to assume D.C. residents are free to use long guns instead.

D.C. requires that all firearms in the home, including rifles and shotguns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." That "safe storage" requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. It makes D.C.'s gun laws look extreme even compared to those of other cities that ban handguns. If D.C.-style gun control does not violate the Second Amendment, it's hard to imagine what sort of gun control would.

The "safe storage" rule includes exceptions for guns kept in places of business and for guns "being used for lawful recreational purposes within the District of Columbia." It does not include an exception for self-defense at home.

Although three of the original plaintiffs in the D.C. gun ban case said they wanted to keep functional long guns in their homes, the District did not claim they already were allowed to do so. Instead it dismissed the very idea of armed self-defense as self-evidently absurd. "It cannot be seriously contended that the Second Amendment, even if applicable, guarantees private persons a right of ownership or possession of firearms on the basis of an asserted need to resort to self-help," D.C.'s lawyers told U.S. District Judge Emmet Sullivan.

But when the plaintiffs appealed Sullivan's dismissal of their complaint, the District suddenly began to suggest there might be exceptions to the "safe storage" requirement that are not mentioned in the statute. "The [D.C.] Council appears to have recognized that on rare occasions, in the event of a true emergency when necessary for self-defense, a gun could be unlocked," it said.

The only evidence the District cited for this claim was one council member's remark about how long it takes to unlock and load a gun. The District nevertheless suggested that "local courts are likely to give the law a narrowing construction for emergencies."

That possibility does not save the statute, the D.C. Circuit ruled, since "judicial lenity cannot make up for the unreasonable restriction of a constitutional right." Furthermore, a "narrowing construction" is by no means a foregone conclusion.

In its Supreme Court brief, the District asserts that an exception for self-defense at home "is fairly implied in the trigger lock requirement," but it does not explain how. Courts reasonably could read the law's specific "safe storage" exceptions to mean there are no other exceptions.

As Bellingham, Washington, attorney Jeffrey Teichert notes in a friend-of-the-court brief, D.C. courts have convicted residents of violating other gun regulations even when they used their weapons for self-defense. In one such case, the District argued that "self-defense would only excuse the use of the weapon, not the possession of the weapon."

This sort of uncertainty would be considered intolerable in the exercise of any other fundamental right. Could a law requiring that books in the home be kept under lock and key be redeemed by arguing that courts probably would give it a "narrowing construction"? If the right to keep and bear arms means anything in practical terms, it means that someone who uses a gun to defend himself in his own home should not have to throw himself on the mercy of the courts.

Americans: Stars in Bars

jsullum@reason.com (Jacob Sullum) — Wed, 05 Mar 2008 07:00:00 EST

For Americans tired of hearing how we lag behind other developed nations in teaching children math, science, and reading, a new report highlights an area where the United States is indisputably a world leader. According to the Pew Center on the States, the U.S. has a higher incarceration rate than any other country. In your face, Finland!

I exaggerate the response to the report slightly. But some conservatives did react to the news that one out of 99 American adults is behind bars with equanimity, if not pride. "When I see a headline about a record incarceration rate, I'm glad," wrote National Review Senior Editor Ramesh Ponnuru on his Washington Post blog. "Aren't you?"

No, I'm not. If the U.S. were locking up more people than other countries simply because it had a higher crime rate, the number of prisoners in itself would not necessarily be cause for concern. The problem is that it's locking up many people for longer than is appropriate and many people who do not belong in prison at all, including half a million drug offenders.

The Pew Center may not be right that the United States has a higher incarceration rate than countries like China and Cuba, whose official figures should be viewed with skepticism. Still, the U.S. undeniably imprisons a much larger share of its population than other democracies: about 750 per 100,000 people, more than twice the rates in Ukraine, Estonia, and Latvia; more than five times the rates in Spain, Scotland, and the Netherlands; and more than 10 times the rates in Denmark, Italy, and Finland.

But so what? Maybe we have a bigger crime problem, a more sensibly tough response to it, or both. "The fact that we have a large prison population by itself is not a central problem," the criminologist James Q. Wilson told The Washington Post, "because it has contributed to the extraordinary increase in public safety we have had in this country."

When the government incarcerates people who are guilty only of consensual "crimes," however, it wastes scarce prison space that could be used to incapacitate predatory criminals. That compromises public safety rather than enhancing it.

The Bureau of Justice Statistics reports that drug offenders account for about 25 percent of local jail inmates, 21 percent of state prisoners, and 55 percent of federal prisoners. Since 1980 the number of drug offenders in state prisons has increased by 1,200 percent, more than four times the increase in violent offenders.

Drug warriors tend to conflate these two categories. "These offenders are often violent criminals who are likely to repeat their criminal activities," Attorney General Michael Mukasey said in a February 25 speech to the Fraternal Order of Police, describing the prisoners who could benefit from retroactive changes to the federal sentencing guidelines for crack offenses, the first of whom were freed this week.

According to the U.S. Sentencing Commission, however, only one in 10 federal crack offenses involves violence or the threat of violence. Mukasey obscured this point by saying "nearly 80 percent of those eligible for retroactivity have a prior criminal record."

A prior record is not the same as a history of violence. Research conducted by criminologist John DiIulio, economist Anne Morrison Piehl, and sociologist Bert Useem in the late 1990s found that many, if not most, people sentenced for drug crimes in New York, Arizona, and New Mexico were "drug-only offenders," meaning the only crimes they'd ever committed involved the voluntary exchange of politically incorrect intoxicants for money.

As James Q. Wilson himself has observed, imprisoning those people does not reduce the total number of drug dealers, since others quickly take their place. Worse, it leaves less prison space for the robbers, rapists, and murderers who represent a genuine threat to public safety. With limited resources, politicians face an unavoidable but rarely acknowledged tradeoff between being tough on drugs and being tough on crime.

Ad Lib

jsullum@reason.com (Jacob Sullum) — Sat, 01 Mar 2008 23:05:00 EST

SpeechNow.org wants to criticize politicians who support restrictions on political speech. But first it has to get permission from the government.

Last fall the Federal Election Commission agreed to decide whether SpeechNow.org, an independent group that plans to run TV and radio ads opposing or supporting candidates for federal office based on their First Amendment positions, has to register as a “political committee.” In addition to the administrative burden that would entail, it would limit the group’s ability to raise money, since each donor would be allowed to give no more than $5,000 per year and would have to count the donation toward his two-year limit of $65,500 for all political contributions.

SpeechNow.org argues that in its case such restrictions cannot be justified by the goals the U.S. Supreme Court has cited in upholding campaign finance rules: preventing corruption or the appearance of corruption, providing the public with information about candidates, and preventing corporations from using their “immense aggregations of wealth” to exercise a “corrosive and distorting” influence on politics.

The group, which is represented by lawyers from the Institute for Justice and the Center for Competitive Politics, is not a corporation (not even the nonprofit sort) and is not affiliated with any party or candidate. Its bylaws ban donations from corporations or labor unions, donations to parties or candidates, and coordination of its activities with parties or campaigns. Its ads would include disclaimers identifying the sponsor and noting that the spots are “not authorized by any candidate or candidate’s committee.” The group would publicly disclose its donors’ names and the amounts they give.

On their own, the members of SpeechNow.org are free to spend as much money as they want on ads attacking politicians. They argue that the situation should be no different when they get together and pool their resources so their message can reach a wider audience. Otherwise, they say, their First Amendment right to freedom of speech would be abridged because they chose to exercise their First Amendment right to freedom of association.

Isn't Self-Defense Common Sense?

jsullum@reason.com (Jacob Sullum) — Wed, 27 Feb 2008 07:00:00 EST

Under the Second Amendment, Barack Obama says, "There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation." The leading candidate for the Democratic presidential nomination thus seems to be on the same wavelength as the U.S. Court of Appeals for the District of Columbia Circuit, which in a decision last March said "the protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."

But there is a crucial difference between these superficially similar formulations: The appeals court meant what it said, and Obama doesn't. Although the Illinois senator has learned to pay lip service to the Second Amendment, the details of his past and present positions on gun control suggest he neither understands nor respects the right to keep and bear arms.

In last year's ruling, which the U.S. Supreme Court will soon review, the D.C. Circuit overturned a Washington, D.C., gun law that bans possession of handguns in the home and requires that rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The law thereby effectively bars city residents from using firearms for self-defense in their own homes.

Obama evidently considers that de facto prohibition a "common-sense regulation," since he recently cited Washington's law as an example of constitutionally permissible gun control. "The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gangbangers and random shootings on the street isn't borne out by our Constitution," he said.

The D.C. gun law, passed in 1975, isn't really about gangbangers, which it has not exactly disarmed, or random shootings on the street, which it has not noticeably curbed. In effect if not intent, it is about disarming law-abiding residents who might want to protect themselves from gangbangers and other violent criminals.

It's not surprising that Obama sees nothing unconstitutional about this situation, since he does not acknowledge that the Second Amendment has anything to do with self-defense. "As a former constitutional law professor, Barack Obama understands and believes in the constitutional right of Americans to bear arms," his website claims. "He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting" (emphasis added).

This is the only substantive discussion of the Second Amendment on Obama's website. It's part of a document that lists "Protecting Gun Rights" as a subcategory of "Supporting the Rights and Traditions of Sportsmen," which is like listing "Protecting Freedom of Speech" as a subcategory of "Supporting the Rights and Traditions of Auctioneers."

It's true that hunting—at the time an important source of sustenance, as opposed to the hobby it has become for most Americans—was one of the gun uses the Framers had in mind when they guaranteed the right to arms. But as the D.C. Circuit emphasized when it found Washington's gun law unconstitutional, "the people's right to arms was auxiliary to the natural right of self-preservation," which was "understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

Because Obama ignores these aspects of the Second Amendment, he sees no constitutional barrier to a complete ban on the manufacture, sale, and possession of handguns, which he supported when he ran for the Illinois Senate in 1996. Two years later he said he favored a ban on the sale or transfer of all semiautomatic firearms, which would cover not only most handguns but many hunting rifles and shotguns as well.

Responding to criticism that Obama has since changed his position on gun control, his campaign declares that "Obama has been consistent." If so, consistent civil libertarians—the ones who do not mentally skip from the First Amendment to the Fourth—should be worried.

© Copyright 2008 by Creators Syndicate Inc.

The Blurry Edges of Obama's Memory

jsullum@reason.com (Jacob Sullum) — Wed, 20 Feb 2008 07:00:00 EST

By now you probably have heard the rumors about Barack Obama and drugs. A recent New York Times report suggests the leading candidate for the Democratic presidential nomination misled the public about his history of drug use—by making it seem more impressive than it really was.

This is a welcome twist on the usual story of politicians' youthful experimentation with illegal intoxicants, which features evasions and false denials rather than forthrightness verging on exaggeration. But in the end the Illinois senator's narrative is disappointingly conventional, reinforcing the myths that underlie a drug policy he has rightly called "an utter failure."

In his 1995 memoir Dreams From My Father (written before he had run for anything but editor of the Harvard Law Review), Obama recalls smoking pot and snorting cocaine in high school and college; he says he even considered heroin before fear dissuaded him. "Junkie. Pothead," he writes. "That's where I'd been headed: the final, fatal role of the would-be black man."

Obama explains that he got high not "to prove what a down brother I was" but to "push questions of who I was out of my mind." In marijuana, he says, he "sought something that could flatten out the landscape of my heart, blur the edges of my memory."

Although Obama gives the impression that he had a serious problem with drugs, "more than three dozen...friends, classmates and mentors" from his high school and college days who were interviewed by the Times remembered him as "grounded, motivated and poised, someone who did not appear to be grappling with any drug problems and seemed to dabble only with marijuana." A college friend said Obama "was not even close to being a party animal."

It's pretty damning stuff. But as the Times acknowledges, there are several possible explanations for the apparent inconsistency. Maybe Obama carefully concealed his drug problem; maybe his friends are trying to protect him by downplaying his drug use; or maybe Obama "added some writerly touches in his memoir to make the challenges he overcame seem more dramatic."

That last explanation seems most plausible, and it's too bad the writerly touches paint such a misleading picture, implying that occasional pot smokers are just a step removed from addiction and death. In public comments since writing the book, Obama has stuck to the narrative of sin and redemption, calling his drug use "bad decisions" that held him back.

Even so, Obama's comments have attracted criticism. Last fall former Republican presidential candidate Mitt Romney said "it's just not a good idea for people running for president of the United States who potentially could be the role model for a lot of people to talk about their personal failings while they were kids because it opens the doorway to other kids thinking, 'Well, I can do that too and become president of the United States.'"

The thing is, that happens to be demonstrably true. And until politicians admit that smoking marijuana, something at least half of American adults born after World War II have done, is not a harbinger of ruin but a generally harmless rite of passage, they will not be able to have an honest discussion about drug policy.

Obama has gone further than most. He has acknowledged his own pot smoking, and in 2004 he said "we need to...decriminalize our marijuana laws," which in the United States usually means people are not subject to arrest for possessing small quantities of the drug.

What Obama has not done is connect the policy of not treating pot smokers as criminals (a position from which his campaign recently seemed to retreat) with his own experience as a pot smoker. Obama would not be better off now if he had been arrested for marijuana possession in high school or college, and there's no reason to think that experience would improve the life prospects of potential presidents who today are sneaking a puff here and there.

Mandatory Niceness

jsullum@reason.com (Jacob Sullum) — Wed, 13 Feb 2008 07:23:00 EST

Last month, when an officer of the Alberta Human Rights and Citizenship Commission interrogated him about his decision to reprint the notorious Muhammad cartoons that originally appeared in the Danish newspaper Jyllands-Posten, Ezra Levant did not try to ingratiate himself. Levant, former publisher of the news magazine the Western Standard, called the commission "a sick joke," compared it unfavorably with Judge Judy, and dared the "thug" across the table to recommend that he face a hearing for publishing material that offended Muslims.

That way, Levant explained, he could be convicted, which would give him a chance to challenge the censorship that Canadian human rights commissions practice in the name of fighting discrimination. "I do not want to be excused from this complaint because I was reasonable," he said. "It is not the government's authority to tell me whether or not I'm reasonable."

Legally, that remains to be seen. Canada's national and provincial human rights commissions were established in the 1970s to vet complaints about discrimination in employment, housing, and the provision of goods and services. But many of them have broad legal mandates that can be used to attack freedom of speech. Alberta's Human Rights, Citizenship, and Multiculturalism Act, for example, prohibits publishing anything that "is likely to expose a person or class of persons to hatred or contempt."

Syed Soharwardy, president of the Islamic Supreme Council of Canada, claims Levant did that by running the Muhammad cartoons. "Publishing of cartoons in the Western Standards [sic] is in fact spreading hate against me," Soharwady scrawled on a complaint form he submitted to the commission in February 2006. He also complained that "Mr. Ezra Levant insulted me" when the two debated the cartoon controversy on CBC Radio. Soharwardy is demanding an apology. The commission can impose fines and gag orders as well.

Meanwhile, the Canadian, Ontario, and British Columbia human rights commissions are considering similar complaints against Maclean's magazine and the journalist Mark Steyn over an October 2006 article adapted from his book America Alone. The Canadian Islamic Congress claims Steyn "subjects Canadian Muslims to hatred and contempt" and harms their "sense of dignity and self-worth" by worrying about high Muslim birth rates.

Even if a complaint is dismissed, Levant notes, responding to it requires "thousands of dollars in lawyer's fees" and "an enormous amount of time," which encourages journalists to steer clear of touchy subjects. "A warning shot has gone out to every other media [outlet] in the country," he said during the 90-minute commission interview. "‘Don't mess around with the Muslim radicals, because they'll call in the censors.'"

In Levant's case the censors were represented by a bland bureaucrat named Shirlene McGovern, paid to enforce the commandment that Jonathan Rauch dissected in his 1993 book Kindly Inquisitors: "Thou shalt not hurt others with words." As Rauch cogently argued, "This moral principle is deadly...to intellectual freedom and to the productive and peaceful pursuit of knowledge."

But in a sense, Levant and Steyn are lucky. An Afghan journalism student recently was condemned to death for downloading and distributing a report that criticizes the way Islamic fundamentalists interpret the Koran to justify oppression of women. The student's Afghan defenders argued that distributing the report did not amount to blasphemy, that the prosecution was politically motivated, that the trial was unfair, and that the sentence was excessively harsh.

The one thing they did not say was what Levant said when confronted by Canada's kindly inquisitors: that even if the controversial speech is contrary to Islam and offensive to Muslims, the government has no business punishing him for it. "I reserve maximum freedom to be maximally offensive, to hurt feelings as I like," Levant told McGovern. While he has publicly explained the journalistic reasons for running the Muhammad cartoons many times, he said, "The only thing I have to say to the government about why I published [them] is because it's my bloody right to do so."

The Whys of Spies

jsullum@reason.com (Jacob Sullum) — Wed, 06 Feb 2008 07:02:00 EST

Last August, panicked at the prospect of an imminent terrorist attack that could be averted only by granting the executive branch new surveillance powers, Congress passed the Protect America Act. With the law scheduled to expire this month, the Bush administration is trying to scare Congress into making the powers permanent.

The alleged crisis is an artificial one created by a president who waited until last summer to seek congressional approval for the illegal surveillance his administration conducted after 9/11. Bush took his time, and so should Congress.

After The New York Times revealed, in December 2005, that the National Security Agency had been eavesdropping on international communications involving people in the U.S. without the warrants required by the Foreign Intelligence Surveillance Act (FISA), the Bush administration insisted the program was perfectly legal. The Justice Department claimed Congress (apparently without realizing it) had implicitly amended FISA when it authorized the use of military force against Al Qaeda and its Taliban allies in Afghanistan.

At the same time, then-Attorney General Alberto Gonzales said the White House had not asked Congress to change FISA because Congress probably would have said no. That explanation was inconsistent not only with the claim that Congress already had legalized the surveillance program but also with the fact that Congress had amended FISA in other ways by passing the PATRIOT Act in October 2001. If any doubt remained that Congress would have been receptive to the administration's request for further FISA amendments, it was dispelled by the hasty passage of the Protect America Act.

Even at this late date, it's not clear why FISA needs to be amended. The administration said it violated the law for years because it could not conduct the surveillance necessary to prevent terrorist attacks while complying with FISA's warrant requirements. But in January 2007, Gonzales suddenly announced that the irresolvable conflict somehow had been resolved and that all anti-terrorist surveillance thenceforth would be conducted in compliance with FISA.

A few months later, what had been impossible and then briefly possible became impossible again, supposedly because of a secret ruling by the Foreign Intelligence Surveillance Court. Acccording to the administration, a judge on the court interpreted FISA as requiring a warrant for surveillance of foreign-to-foreign communications that happen to pass through U.S. wires.

"International communications are on a wire, so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that," Director of National Intelligence Mike McConnell told the El Paso Times in August. "If it were wireless, we would not be required to get a warrant....My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire."

It's hard to see how a judge could have interpreted FISA this way. But even if one did, the administration has never explained why this decision (which it inexplicably did not appeal) required Congress to authorize warrantless surveillance of communications that not only traverse U.S. wires but involve people in the United States.

Instead the administration has obscured the breadth of the powers granted by the Protect America Act. In the El Paso Times interview, McConnell falsely asserted that the communications at issue are "all foreign to foreign."

The administration has contradicted itself even on the question of how urgently needed the FISA changes are. Last summer they were so crucial to national security that McConnell claimed pausing to debate the issue meant "some Americans are going to die." More recently, Bush has threatened to let these absolutely essential powers lapse by vetoing extension bills that do not meet his specifications.

An administration that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers cannot be trusted to exercise those powers in secret.