Date: Tues, May 4, 1999 8:31:03 AM
Subj: The Affable Despot
Jaws dropped at the Cato Institute yesterday. The amazed were hunkered down in the subterranean F.A. Hayek Auditorium for a morning conference on civil asset forfeiture reform. House Judiciary Committee Chairman Henry Hyde (R-Ill.) was on hand to outline the provisions of his forfeiture reform bill, which he had just introduced, and to speak more generally to the injustices of seizing people's property without a trial. Hyde has put together a bipartisan coalition that includes Reps. Bob Barr (R-Ga.), John Conyers (D-Mich.), and Barney Frank (D-Mass.) to battle Clinton's Department of Justice and the legion of state and local law enforcement organizations that get a cut of the more than $338 million the government seizes from Americans each year. But it wasn't Hyde who amazed us.
It was Gordon Kromberg, the assistant U.S. attorney for the Eastern District of Virginia, one of two Department of Justice representatives present. By the time Kromberg made it to the microphone, Cato's Roger Pilon, Hyde, and Bo Edwards, an attorney who represents people whose property has been stolen by government agents, had already held forth. They'd explained the system: that property can be confiscated by government agents based on nothing more than probable cause; that the accused individual is considered guilty and must prove otherwise to get his property back; that law enforcement agencies get to keep and use whatever they confiscate; and that this system, not surprisingly, often abuses innocents, especially minorities who, we all know, are more likely to fit law enforcement's definition of probable cause.
Kromberg, who'd grinned through a glass of water for the entire presentation, knew he had a tough case to make. "Thanks for having me as the designated piñata at this party," he opened wryly.
He then proceeded to a two-pronged line of argument. First, he denied there was a problem. Claiming the examples Pilon, Hyde, and Edwards cited were dated--most went back to the early '90s--he said the government had reformed itself. It had learned how to handle its new tool, which, after all, was put to serious use for the first time in the late 1980s. Playing to the anti-government sentiment of the Cato crowd, this crafty arm of Leviathan claimed Hyde's efforts were typical of our bumbling government. Mocked Kromberg, "Let's go reform what used to be." As proof of good behavior, Kromberg said he hadn't confiscated a car in over a year.
The shocking part came later. Explaining the two types of asset forfeiture--criminal, which emerges from a criminal trial and conviction, and civil, which can transpire absent even an arrest of the property owner, let alone a conviction. Kromberg defended the latter in this way: Prosecutors are busy. Way too many bad guys are running around for them to help catch with stings and convict in court. Some outlaws are even pretty smart. He admitted that he currently had 10 money laundering cases in which he couldn't figure out how the people were washing the dough. But still, he knew these people were guilty and was certain they needed to be punished. Should we let these people get away, he asked, before answering in an illuminating way: Not if we can punish them through other means.
There you have it: Kromberg came clean, to employ a law enforcement cliché. He bluntly declared that people like him ought to be able to punish individuals they believe are guilty, even if they can't prove that guilt in a court of law. In essence, this affable despot sees nothing wrong with prosecutors serving as judges and juries. Different levels of punitive action deserve different levels of protection, he said. If you're not infringing on liberty, he said, punishment should require a lower standard.
Now two things are worth mentioning. I would argue that confiscating someone's car, their boat, or a large sum of money is in fact depriving them of liberty--at least the liberty to drive around, go water skiing, and buy stuff. It's interesting that those in our government doing the confiscating don't agree.
Perhaps more important, however, is that the "lower standard" Kromberg invokes, probable cause, is barely a standard at all these days. In practice, this means a government agent can seize any money you may be carrying if a drug dog detects a bit of contraband on it. Since most of the U.S. money supply is contaminated, the government can basically empty out your wallet any time it wants. It is up to you, an American citizen who hitherto thought you had constitutional rights, to convince the government, either in an administrative procedure or later in court, at great expense and effort, that the money was in fact not the result of a drug transaction.
Kromberg sees nothing wrong with the probable cause standard. In fact, he loves it. This low standard, he explained, allows the government to rely on hearsay to confiscate property. If you tighten this standard, according to Kromberg, the government would have to go to trial--actually march into a real court where even people who aren't government agents have rights --to get its hands on someone's property. That's what's wrong with Hyde's bill. Said Kromberg: "When you want to change the burden of proof, you're cutting the throat, eviscerating asset forfeiture as a tool."
Precisely, Mr. Prosecutor.
By Michael W. Lynch
Date: Tues, May 11, 1999 11:36:26 AM
Subj: Summit View
Yesterday was "Save the Children from Violence and Teach 'Em Responsibility Day" in Washington. Everyone was in on the festivities. The White House hosted a summit to address the issue. Clinton neglected to invite the National Rifle Association, prompting it to hold a press conference at the National Press Club. Republican presidential hopeful Gary Bauer felt the need for his own press conference in an adjacent room, where he screened segments from violent movies and video games. And on my way to the Press Club, a woman wearing a black trench coat and a black stocking hat and carrying a sign that said, "Clinton: Trench Coat Role Model," stopped in front of the White House to hand me some 19th-century peacenik poetry.
Washington is responding to this "crisis" as it does to all others--as a news hook to push prepackaged policy. Some are using the tragedy to argue for more federal control, others are calling for the feds to more forcefully exert the immense power they already enjoy, and still others are blaming private third parties and issuing thinly veiled calls for censorship.
I figured I'd spend a day listening to the blather. The NRA conference was packed--too many cameras to count and a podium of microphones that must have numbered in the 20s. Wayne LaPierre, the NRA's executive vice president, was first up. After assuring us that the NRA had a core interest in reducing violence, he said he felt compelled to read a statement. The perspiring LaPierre opened with an extended metaphor of policy making as theater, politicians working up the audience with staged events and final passage of some new federal law as the closing. The politicians, charged LaPierre, know the new laws won't do a darned thing to solve any problem, but that's not the point: Their policy stance polls well.
In a slap at the entertainment industry, LaPierre said, "This made-for-TV lawmaking has the same effect on the population as made-for-TV violence. It entertains but harms us."
By now, you have probably seen the rest of his case in one of the NRA's newspaper advertisements. The preponderance of child violence and teen death by guns is among 15-to-19-year-olds, many of whom are actually adults and all of whom are already breaking existing laws. Out of 6,000 kids who got caught with guns at school--in violation of the federal Gun-Free Schools Zone Act--the Clinton administration prosecuted only 13. Out of the 250,000 felons who tried to buy a gun in violation of the Brady law, none was prosecuted. LaPierre and the NRA want to put more people in jail before we pass new laws. They also want the federal government to spend more of your money on prosecutors and to take charge of discipline at your local school.
While LaPierre talked about "the culture of violence" and "gang bangers" causing all the mayhem, Gary Bauer was busy next door blaming Hollywood and America's "death culture" for the Littleton massacre. Since Bauer's show conflicted with the NRA's, I, like many other reporters, was unable to view his screenings of select scenes from Natural Born Killers and segments of the video game Doom. I had to content myself with a written release of his remarks and an interview afterward.
"There is a direct connection between what is produced in Hollywood studios and the rising tide of cultural chaos we are witnessing in a horrifying pattern of school shootings, bomb threats and other disturbing classrooms," according to Bauer's statement. Bauer, no doubt a popular culture connoisseur and avid video game freak, later continued, in what might be a bit of an overstatement, "Today's music, film, and video games laud explicit, sadistic sex, glossed with sickening violence and deep degradation of the human spirit." So much for solitaire and Shakespeare in Love.
I caught up with Bauer later and asked him if he thought it was a little disingenuous for politicians, aspiring politicians, and advocacy groups, none of whom has a clue what really causes bomb- and gun-related school tragedies, to use the carnage as a convenient way to push their pre-existing policy goals. Looking up at a slight angle, he addressed the question directly. "The worst thing," he replied, "would be for politicians and those of us who aspire to leadership to say nothing." Quiet politicians. The horror!
I was soon out the door and off to the White House, where President Clinton was hosting a summit. I missed the opening of the festivities, but according to the pool report, Clinton entered the White House East Room filled with nearly 60 select souls. "This was an isolated and tragic event," Clinton told the room. He wasn't talking about the Columbine High event--no, that's part of an epidemic of violence that shows the need for more federal laws, public-private partnerships, self-censorship promises from the entertainment industry, and endless analysis. He was referring to NATO's bombing of the Chinese embassy in Belgrade.
Clinton then told the audience that the goal of today's event wasn't to "place blame but to shoulder responsibility." Responsibility is Washington-speak for expanding government power, this time under the pretext of preventing youth violence. He announced that the surgeon general would be preparing a report on the causes of youth violence. He also said that television sets would soon have V-chips in them.
When I arrived at the White House Press Room at 12:25 p.m., the corps were in the "wait" stage of the hurry-up-and-wait drill that is the life of political reporters and camera people. Reporters sat reading in the dimly lit press room; a half-dozen or so camera operators sat reading and gabbing at a "stakeout"--a bank of cameras and microphones--just to the right of the West Wing's northern entrance. Out back in the Rose Garden, White House staff members were setting up the president's podium, press gallery, and select seating.
At around 2 p.m., an hour late, the call came for the press to assemble and be escorted out to the Rose Garden. Behind the garden sat a noticeable patch of tilled dirt, a rectangle a bit larger than a basketball court. Perhaps, I said to my neighbors, Clinton is allowing Al to do a bit of farming to add authenticity to his claims. A love swing hung from a tree in back of the Oval Office, adjacent to the president's putting green. There was speculation about the swing's purpose and past, but a seasoned reporter indicated that all the good stuff goes on inside.
Our banter was interrupted by an announcement that the summit participants would be entering the garden. As the participants shuffled in, taking their assigned spots on a two-tiered riser, a voice hailed the arrival of The President and Hillary and The Vice President and Tipper.
Bill was first up, telling us how the summit was everything he had hoped for, "where everyone was talking about problems and opportunities and everyone was talking about the work to be done." He delivered his usual blather about how important it is to "overcome the old ways of doing business," as he launched a new campaign against teen violence, modeled on his successful campaign not to impregnate any teens. He challenged parents to turn off the television and heed Al Gore's advice to keep an eye on the computer screen. He mentioned a "coarsening of the culture" but didn't expand on his role in turning the copy churned out by national news desks into badly written letters to Penthouse Forum.
The best line, however, came from his wife, perhaps the next senator from New York. Said Hillary, in a truly profound moment, "I think everyone who participated in the meeting this morning came away with the positive feeling that there isn't any problem that we face when it comes to our young people that if we are honest enough to talk about it we can come up with ideas about how to address it and we can better empower all parts of our society to be part of the solution." There's just nothing that we can't do or agree on, if we avoid any specifics and speak in run-on sentences.
The White House is clearly worried about Al's presidential prospects. In addition to the plot of land, it is giving him other important and symbolic tasks. Yesterday, for example, he seemed to have been allowed to take the minutes at the summit. As everyone sat roasting in the afternoon sun, Gore gave a virtual play-by- play of the four-hour meeting, making his speech by far the longest.
"Better parenting is the main and best solution," Gore allowed, in the obligatory reference to the important role parents play in raising good kids. All adults, according to Al, must take more responsibility for becoming involved in the lives of all children. He mentioned Maya Angelou's comments on the epidemic of rage and cynicism, plugged early childhood education and after-school care, and described the need for more mental health services. Al's clearly positioning himself to capture the crazy vote. (His wife is hosting the first ever White House Conference on Mental Health in June.) Babbling Al just went on and on and on, beginning nearly every sentence with "We talked about…"
After Gore finished, a 17-year-old student reporter in a purple shirt got Bill's attention with a zinger, as the president made his way back to the White House. How do you reconcile complaining about media violence with the bombing of Serbian civilians, the young man asked. I wasn't close enough to hear the president's answer, which he delivered in a soft tone. But according to David Lightman of the Hartford Courant, Clinton replied: "[Parents] should shield younger children." Especially if the parents live in Belgrade.