Category Archives: Civil Liberties

No real surprise here—courts are often loath to take 'risks' with national security—but still a sad way for us to treat one of our fellow citizens who has not even been charged with, much less convicted of, any offense:

National Briefing: Domestic Security. RELEASE ORDER IS DELAYED A federal appeals court granted the government's request to delay an order to release an American citizen imprisoned as an enemy combatant. The stay, by the United States Court of Appeals for the Second Circuit, gives the government time to pursue a Supreme Court appeal while the citizen, Jose Padilla, remains in a military jail. In December, the court ruled President Bush lacked the power to order an American citizen, seized on American soil, held as an enemy combatant.

On first reading, this Second Circuit decision in Church of the American Knights of the Ku Klux Klan V. Kerik is pretty awful.

It's not just that the court seems to have outlawed Halloween. No, it's that the precedent is just waiting to be used to block the operation of anonymous remails and the use of strong cryptography.

As we move to a world of mandatory ID cards and inescapable facial recognition, not to mention lie-detector specs, this case could really come back to, um, haunt us.

I discuss the general issues in two papers, Anonymity in the Balance (book chapter in Digital Anonymity: Tensions and Dimensions (C. Nicoll, J.E.J. Prins & M.J.M. van Dellen eds. 2003), and The Death of Privacy?, 52 Stan. L. Rev. 1461 (2000).

The more specific issue of the legal rules relating to strong crypto is discussed in the only very slightly dated The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution, 143 U. Penn. L. Rev. 709 (1995). You can also skip straight to my discussion of the earlier mask law cases.

Update: For those who don't want to load the slow .pdf case file, I should perhaps explain that the Second Circuit upheld New York's anti-mask law against a group of constitutional challenges—although it dodged one of the key issues, the extent to which a right to speak annonymously was implicated. The court was able to do this by making the scarecely-credible assertion that the right to protect one's associations (NAACP v. Alabama) was not implicated when demonstrators were forced to expose their faces as a condition of appearing in public—in this case at a public demonstration. The court also rejected as irrelevant the claim that this would discourage attendence at KKK rallies, but the argument it uses seems too broad.

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High Court to Hear U.S.-Born Detainee's Case.

Of course the Hamdi case is important…but not as important as the Padilla case. Although I think the government's position in Hamdi is wrong, the threat posed by the possibility that the government might grab people abroad and falsely claim they were in the field of battle, or even hold those truly in the field of battle for a long time are problems that are survivable. Letting the government disappear citizens domestically (Padilla) is not.

Update: I should explain that I don't mean by the above to suggest anything about the facts of the Hamdi case. Rather, I mean that if one were to accept the government's contentions in the Hamdi case, then cases where the person detained was abroad, but not on the field of battle, would be unreviewable in the future, which strikes me as pretty darn bad — but not as bad as making the whole US a zone where any citizen can be picked up and locked away for ever by the (un)secret police.

The Register: “A mother's enquiry about buying Microsoft Flight Simulator for her ten-year-old son prompted a night-time visit to her home from a state trooper.”

No comment necessary.

Here's the sort of under-the-radar item that never gets the attention it deserves: who will control access to politically sensitive material in the National Archives. I missed the original item praising the Nixon tapes as a valuable history lesson, and only saw the darker follow-up letter, The Nixon Tapes. The letter (latter?) is more important:

But who protects archivists?

In 1986, the Justice Department tried to force the Archives to accept without discretion Mr. Nixon's claims against release of records. A court threw out the directive.

In 1987, Mr. Nixon blocked the opening of 42,000 documents deemed releaseable by archivists. Mr. Taylor later claimed that the blocked items represented information “routinely” withheld at presidential libraries. The Archives sat on the documents for nine years before upholding most of its archivists' decisions on disclosure.

The belated release showed that Mr. Nixon wanted information about Vietnam (“tell Henry [Kissinger] get best deal — let Thieu paddle his own canoe”) and Watergate (“put it on Mitchell”) withdrawn as “personal.” Who will prevail in future battles, Mr. Nixon's advocates or archivists?