The Obama Administration Did Two Great Things This Week

It appears to be legacy-polishing time at the White House. This is the time late in the second term where presidents start to recall the various terrible decisions they made over their tenure in office, and start looking to balance out the ledger so they'll still be remembered favorably. And since they aren't standing for reelection anyway, they tend to undertake actions regardless of their popularity politically.

For this reason, it's a time for both anxiety and cautious excitement, assuming there are at least a few issues where you share common ground with the president.

The goals of the legacy-polishing period are two-fold:

1. To prevent any complete chaos or crisis from breaking out in the last days of your term, and
2. To finally make progress on old campaign promises and pet projects alike.

We saw the first goal manifest itself in the renewal of the war in Libya last week--a war which even the Pentagon concedes is open-ended. The objective there, presumably, is to prevent ISIS from formally taking control of any high-profile city, at least until the next president is inaugurated.

While this is clearly terrible, there was also some genuinely good news to emerge. Interestingly, both items relate to prisons, which are not normally sources of hope and optimism.

More Releases from Guantanamo Bay

First up, reports emerged this week that the US had approved the release of 15 more detainees from Guantanamo Bay to the United Arab Emirates. This is the largest single release in the Obama years, and it brings the remaining population in Guantanamo down to just 61. Arguably even more impressive is that, according to The Washington Post, one of the detainees was slated for indefinite detention without trial.

Indefinite detention is an obviously illegal practice that is reserved for those detainees that the Administration has determined (without due process) to be "too dangerous to release" but impossible to convict. Although it probably won't be stated as such, the assumption here is that they wouldn't be able to convict them because some of the key evidence was derived through torture and thus wouldn't be admissible in court.

That's why it is particularly hopeful that a detainee managed to get off the "forever detention" list and actually get released. It's not clear exactly how many such prisoners remain at Guantanamo, but it's a win for due process that this dubious status is, at least in some cases, possible to be removed.

As with most decisions, there are risks associated with releasing prisoners, as there are with many political decisions. Many of these people have been tortured and denied their freedom for years by the American government. Frankly, it would be shocking if none of them hated America at this point, but the actual number of known violent incidents by former detainees is surprisingly small. In any case, the fact is that releasing people who cannot be prosecuted is still clearly the right thing to do. They may pose some danger to innocent people. But then again, a government that is empowered to incarcerate people indefinitely without trial poses a pretty strong danger to innocent people as well.

The End of Private Prisons, Sort Of

The second piece of great news is that Obama's Justice Department recently announced guidelines aimed at ending the use of private prisons for federal incarceration.

This is a big positive step. But it is more important symbolically than it is practically. The new guidelines do not do anything immediately; they merely instruct the federal government to either let contracts on the private prisons expire (and not renew them) or at least, substantially reduce the involvement of for-profit companies in the future. So again, today, nothing happens. And it's not a law, so technically, these guidelines could be overturned if, say, a law and order candidate got elected and decided private prisons were good for his brand.

Just as important, federal private prisons only hold around 22,000 inmates, out of the 2.3 million overall. Thus, even if these new guidelines were faithfully implemented, their direct impact is relatively small.

With all those qualifiers added, however, this is still a big step because it's going to refocus the debate on this subject. That's a good thing.

It's important to note that the problem with for-profit prisons is not a problem with for-profit companies in general. As the name implies, for-profit companies exist for one primary purpose, generating profits. In most markets, the incentives point in a direction that is beneficial. Companies produce profits by giving customers what they want, at a better price than the competition. It's a win-win.

However, a major problem arises when there are no customers to satisfy. And this is the case with private prisons. The people that deal with the private prisons the most are the prisoners themselves, but unlike customers, the prisoners don't have the ability to leave if the company behaves poorly. This, in turn, means companies have no incentive to meet the prisoners' needs, and these needs often go unmet.

A private prison corporation gets its revenue by winning contracts through the political process, not the market process. And once they win a contract, they are likely to preserve it as long as they avoid any major damaging scandals that could harm elected officials. Clearly, that is a very low bar for performance.

The result is that private prisons tend to be at least as bad as publicly run prisons. Then the private prison corporations recycle the profits into the political process to lobby for tougher crime legislation (and thus, greater demand for their services). In essence, the incentives are bad at nearly every step in the process.

That's why it's great news that the Administration is coming out publicly against this system--even if it doesn't have any immediate effect beyond crashing the stock prices of the prison corporations. It remains to be seen whether any state governments, who hold most of the US prisoners, will follow the federal lead.

It's not that often that we get the chance to praise President Obama, or any other politician, for that matter. But this week, at least on these narrow issues, he deserves credit. As the legacy-polishing continues, let's hope he sticks with the criminal justice theme. If he veers back into economics or foreign policy, it might not turn out so well.

How Private Prosecutions Could Help Stem Police Brutality

Police brutality remains in the news this week, as it has been off and on since 2014. People--disproportionately people of color--continue dying at the hands of law enforcement at a rate of approximately 3 per day. It's true that not all of these deaths happen under suspicious circumstances that suggest wrongdoing. But many do seem thoroughly unjustified, including two that we wrote about recently.

In the most egregious cases, like that of Walter Scott, there's a chance of police being charged with a crime. But this is the exception, not the rule. In 2015, eighteen officers faced charges of manslaughter or murder related to an estimated 990 individual deaths, which was actually a significant uptick from 2014. No officers were convicted on such charges during the year, though some, such as the Scott case, remained pending. Given that the United States criminal justice is not renowned for leniency, these are rather remarkable statistics. And the numerous individual cases, high-profile and otherwise, in which officers evaded convictions or even charges attest to the fact that something is deeply wrong. In spite of massive, regular protests in the wake of each new tragedy, the solution remains elusive.

Many good ideas have been proposed to help address the problem of police brutality, such as the slate of reforms promoted by Campaign Zero. But few people are talking about the most promising reform of all: Legalize private prosecution for police brutality cases.

Self-interest and Prosecution
This may sound at first like a radical idea, but it is not. In fact, it is not even a new idea at all. Under the English common law system, private prosecution was the norm. And this system was largely replicated in the American colonies. Thus, private prosecution was the dominant method of seeking redress in the US through the first half of the 19th century. It was only later that the role for government prosecutors gradually expanded and usurped the role of private prosecution. Today the practice is largely nonexistent in the US, even in states that still allow it in some form.

While idea of having a lawyer prosecute and punish people for profit may seem ripe for abuse, these risks are constrained in an adversarial justice system like ours. In principle, it's not different than the role of a private defense attorney. In our system, the prosecution is asked to present the best possible evidence in support of conviction; the defense is asked to make the best case that their client is not guilty; an impartial judge oversees the proceedings; and the jury (or judge) decides which side is right. In theory, we may think of the public prosecutor as pursuing some vague notion of justice. On Law & Order, it might work that way. But we can look any number of facts and events in the real world that would disabuse us of this idealism.

For instance, it is a completely standard practice to offer accused criminals a lesser sentence if they plead guilty to a crime than they would face if the case went to trial. This practice makes no sense at all if prosecutors are merely interested in justice--why in the world would justice require a different punishment for the same crime based on whether or not the prosecutors had to win at trial? Clearly, it would not. Additionally, prosecutors routinely cite conviction statistics when running for the reelection. But "justice" doesn't care how many people were convicted; it would only care that they were treated fairly. From this, it's fair to say that justice is not the core driver of prosecutors today. Rather, many of them are motivated by something else, probably self-interest just like the rest of us.

So when a public prosecutor litigates a case, they are (generally) making the most compelling case they can to get a conviction. This is precisely what we would expect a private prosecutor to do in the same circumstances. In order to fulfill their client's wishes, the private prosecutor must present the best case possible to bring the defendant to justice.

Conflict of Interest in Police Brutality Cases
While the incentives for private and public prosecutors may alignaligmany cases, they are likely to diverge sharply when it comes to prosecuting police officers. Here, the public prosecutor knows that they must maintain a good working relationship with the police department, and they may even have personal relationships with some members of the police force from their day-to-day work. Just as important, police unions are powerful political entities that wield considerable influence in local elections. All of these forces make it much less likely for a public prosecutor to go after individual cops, even under circumstances that indicate wrongdoing. It might be the right thing to do, but it is likely to directly contradict their own self-interest. Going up against the police union is not a battle they are likely to win.

It should not be surprising, therefore, that many police killings result in no charges whatsoever. Frequently, these cases involve extraordinary legal procedures to reach their conclusion.

Take, for example, the case of Michael Brown in Ferguson, Missouri. While there was no video footage in this killing, there was eyewitness testimony and sufficiently suspicious circumstances that the death sparked outrage and national attention. In this case, the prosecutor took the case to a grand jury and proceeded to present evidence in support of and against indicting the officer involved. The offending officer himself testified at length in the proceeding, effectively getting to present his defense. This contrasts markedly with a typical grand jury proceeding, in which the prosecutor presents one side of the story and the jurors return the requested indictment. The purpose of the grand jury process is to throw out completely baseless charges, not to assess guilt of the defendant. And given the one-sided nature of the proceeding, prosecutors almost get the indictment they request--out of 162,000 federal grand jury cases in 2010, only 11 were declined.

But the Michael Brown case was different. There, the prosecutor involved didn't really ask for an indictment. Instead, he turned the grand jury into a makeshift trial of sorts, with no side honestly advocating on behalf of the victim. And so he got the result he wanted; the officer was not charged and the result had a thin veil of legitimacy because some kind of legal process occurred.

The case of Eric Garner followed a similar path. After an incredibly incriminating video of his killing circulated, a grand jury process was conducted, and no charges were filed. The grand jury records in that case remain sealed, so no one knows for sure whether the prosecutor completely phoned it in for that case. But the statistics above, and the appalling nature of the video, make it more likely than not. It also doesn't help matters that the prosecutor charged with overseeing the case, Dan Donovan, decided to launch a successful bid for Congress shortly after the decision. Cynics could be forgiven for suspecting politics were involved in the non-prosecution of Eric Garner's murder.

Other examples could be cited as well. The picture they paint is not a pretty one. At least in this area, it appears that public prosecutors have consistently failed. The police officers involved do not get punished (which may or may not be appropriate), and the overall process lacks enough legitimacy to satisfy the public that justice was served and the rule of law exists. So police brutality continues to occur, the protests continue apace, and more recently, some troubled individuals even resorted to killing individual police officers to exact some kind of collective punishment. In short, the current system is working for no one, except the few officers who commit crimes and get away with them.

The Remedy of Private Prosecution
Now consider the remedy that allowing private prosecution in these cases could provide. The victim's family and supporters would hire a reputable attorney that they trusted, and the attorney's sole job would be to pursue justice for the victim, as it should be. That would probably mean aggressively prosecuting the officer involved to the fullest extent of the law. Some cops may ultimately still walk free in some cases as the laws themselves are very favorable to officers. But the final outcome from a private case would be far more legitimate than the ones we've seen so far, because the central conflict of interest has been removed.

It's also likely that removing the conflict of interest will lead to more cops getting successfully prosecuted and convicted. This, in turn, would influence police behavior for the better. Cops currently face very little risk of prosecution for excessive force, as the cases cited at the beginning of this piece amply prove. In this environment, we should not be surprised excessive use of force is commonplace. But as the threat of punishment becomes credible, we should expect the situation to improve. After all, our justice is based significantly on the idea that punishment deters criminal behavior. If we believe that is true for private citizens, we should expect it to be true for police officers as well.

Many proposed solutions to police brutality implicitly acknowledge the conflict of interest problem that exists currently. But rather than propose outright private prosecution, they typically envision a special prosecutor, still funded and selected in some way by the government. This is likely to be an improvement over the current system, but it is inferior to the private solution for a few reasons.

First, allowing private prosecution doesn't cost the government any additional money--in fact it actually saves money. This means it immediately bypasses one possible legislative hurdle. Second, it confers a greater sense of legitimacy and independence on the prosecutor if the victim's advocates have a direct role in selecting them. Finally, special prosecutors are appointed to all kinds of things in government (like torture, for example) without consistently producing legitimate results, so it's not obvious that police brutality would turn out differently.

One possible objection to the solution I've outlined is that poor people wouldn't be able to afford a private prosecutor. This is a legitimate concern given that many of the victims of police brutality are poor in addition to being minorities. However, the intense focus on this issue of late suggests that these cases could attract top lawyers to prosecute them, either on a pro-bono basis or with donations. Even if that didn't materialize in a specific case, the victim would be no worse off than they are now. In the absence of a private prosecutor, the government would handle the prosecution as they do currently.

Summary
Police brutality is an issue that has plagued the US for some time. While there are many different aspects of the legal system that contribute to this problem, nothing is more central than the conflict of interest between the public prosecutors and the police department. If everything else was fixed and this went unchanged, police brutality would still occur and the perpetrators would still get away with little sanction.

Allowing private prosecution in these cases is a simple and costless remedy that can begin having a positive impact immediately. By increasing the probability of conviction for excessive force, it will create a powerful disincentive for officers to resort to those tactics unless it is absolutely necessary. By removing the conflict of of interest, the resulting legal outcomes will have a level of legitimacy and fairness that the current situation desperately needs. And by letting victims choose an independent and competent advocate in the courtroom, it will at least give them a fighting chance at obtaining justice, a chance they do not currently have.

Civil Disobedience, the First Amendment, and Private Property

Protests against police brutality remain strong this week, and the response remains about as militarized as we might expect--riot gear, tear gas, sound cannons, and so on. The picture below captures the mood pretty well I think.

Some of the protests are permitted while others are not. Aside from sporadic reports of projectiles being thrown at police, the protests have been largely nonviolent across the country, which is commendable and typical of the Black Lives Matter movement.*

In spite of this, many protesters are being arrested (and not just the few that were violent). On the surface, this seems not to make sense. After all, the First Amendment guarantees a right to "peaceably" assemble. It would not be unprecedented for the government to violate the constitution, of course, but is that what is really going on?

In individual cases, probably so. But in general, we must understand peaceably means more than simply nonviolent. A moment's reflection on the matter reveals why this must be so. You could nonviolently stand on someone's private yard and refuse to leave when asked. You could nonviolently stand in someone's shop and refuse to leave. Or you could nonviolently sit in the road, and assuming you have enough friends to do it with you, you might be able to prevent all traffic from passing. All of these behaviors are nonviolent. However, they are not truly peaceful because they violate others' rights. The right to use their private property as they wish in the first two cases; the right to travel on the public road in the second. Peaceful actions don't infringe on the rights of others. Thus, marching on the sidewalk is probably totally fine; marching in the road and impeding traffic probably wouldn't be.

There are exceptions to this general rule. To facilitate free speech (in theory), local governments can create rules and offer permits to say march in the road to protest, for a reasonable amount of time. While this act would still be violating others' rights to use the road in some sense, it would no longer be illegal.

As it happens, blocking traffic appears to be a preferred tactic of the Black Lives Matter group, and they are quite adept at it. Given this, it should not be surprising that many are being arrested.

The reason we call it civil disobedience is precisely because laws are being broken. They might be bad laws, but laws nevertheless. If laws weren't being broken, it would just be called civil obedience, which I can think we can all agree is decidedly less appealing.

We should hope that disproportionate force and punishment is not meted out against protesters who break the laws in the name of protest--and we should probably assume that hope will not be fulfilled in reality. But we should not be appalled, in general, that arrests are occurring. At least in the activist circles I used to frequent (all of which were on the political left), arrests were an explicit part of the strategy of civil disobedience. Arrests bring publicity and media attention to a cause that might not otherwise get it. One can debate the effectiveness of such a strategy in producing real political change, but it does not make sense to object to protesters being arrested when and if they break the law. There are ways to protest without breaking the law; the rest is civil disobedience.

With all that said, however, we would be remiss to imply the cops have been following the letter of the law in response to the protests. A particularly interesting example of this recently occurred in Louisiana, when a group of protesters ended up leaving the street for private property. The protesters reportedly had the property owner's permission, and thus were fully within their rights to remain there. In spite of this, the cops eventually evicted them with a highly militarized response, even as the property owner tried to object.

The thin rationale used to justify this action by the police was that the protesters had already broken the law previously by walking on the road. Based on the sequence of events summarized by Reason, however, this does not make sense. Here's the relevant excerpt:

She says the protesters held a peaceful rally outside the state Capitol, then a portion of them attempted to march along the Interstate highway (a common Black Lives Matter tactic) but were blocked by the police and diverted to a city road.

Reason is citing one of the protesters here, so there's no reason to assume she's an objective observer. Still, the group clearly managed to get from the interstate (where they allegedly broke the law) to private property in what appears to be a subdivision. If the walking on the interstate was illegal, the police could have arrested them at that time.

Instead, they chose follow them to private property and arrest them there. For this to be legitimate, we would have to assume the police actually tracked exactly who in the protest group did and did not violate the law. Then in the chaotic mess that followed in the front yard, they judiciously identified those same people for arrest. Watch the video below, and then see how likely you think that explanation is.

What seems more likely is that, in the most generous scenario, the police may have observed some people breaking the law in the group and opted to use this as a pretext to invade private property. This response probably had nothing to do with identifying the actual individuals who violated a law, and everything to do with sending a message. In other words, it would appear to be thinly veiled collective punishment, with an innocent property owner's rights violated in the process.

Summing Up

It may be worth debating the usefulness of civil disobedience as a tactic, but it should be relatively easy to know when it occurs. And arresting protesters based on their violation of laws is not suppressing their First Amendment rights. It's just the logical outcome of protest actions that involve civil disobedience, for better or for worse.

But we'll end on a slightly more optimistic note. In the example cited above, a group of generally left-leaning individuals appropriately invoked private property rights only to see the government officers gleefully violate them with impunity. For libertarians, that's a perfect metaphor for government action writ large. Maybe some good will accidentally come from more people seeing that.

*It probably goes without saying, but the tragic police shooting in Dallas last week which claimed the lives of 5 officers was not affiliated with the protest that preceded it. The attacker used the event as an opportunity, but there's no evidence of coordination. People have used the event to assign blame to Black Lives Matter based on unassailable collectivist logic--the attack occurred in the vicinity of a peaceful Black Lives Matter protest, the attacker was black, ergo, Black Lives Matter is at fault. It's not clear whether the assailant was even sympathetic to the Black Lives Matter movement before he decided to commit the crime. Even if he was, it still would not warrant smearing the entire organization. A group cannot be justly judged based on the actions (or opinions) of its craziest members; otherwise none of us could ever bear to identify as anything. For example, I couldn't call myself libertarian now that the Iraq War-supporting Bill Weld has adopted the moniker. I also probably couldn't call myself vegan, given that some Canadian vegans went off the deep end and got a ruling passed that prevents discrimination against vegans. I deeply wish I made that up, but sadly, I did not.

I'm digressing in a footnote now, which may be a new low, but the point here should be clear. It is not correct to judge an entire group based on the actions of a single member. And this is particularly true of groups and identities that one does not voluntarily adopt (their race, national origin, religion (arguably), etc.).

More Needless Police Brutality

Philando Castile had his life tragically cut short by a police officer in Minnesota yesterday. What began as a routine traffic stop (over a broken taillight) in a quiet suburb quickly escalated as the police officer shot Castile multiple times. Castile remained in the driver seat throughout, and he would later be pronounced dead at a local hospital. Explicit footage of the shooting itself has not been released (and may or may not exist). However, Castile's girlfriend, Diamond "Lavish" Reynolds was in the car at the time, and she began filming the encounter shortly after the officer shot Castile. Among other things, the video depicts a clearly panicked and hysterical police officer trying to justify his actions.

Earlier this week, a somewhat similar story emerged out of Louisiana. Another man, Alton Sterling, was killed by police responding to a call about a person matching Sterling's description pointing a gun at someone in front of a convenient store. Video has emerged of the actual shooting event in this case, and it's about as bad as it could be. Two officers are seen pinning Sterling to the ground and then one of the officers shouts that Sterling has a gun. The officer draws his own weapon and fires on Sterling multiple times at point-blank range. It's not whether the other officer also fired shots. Sterling died on the scene.

Both of these events follow the formula we have come to expect. Both of the victims were black, and it appears none of the police officers were. At the time of the shootings, neither of the victims appear to have posed a threat to anyone. And at least in the case of Castile, the reason the police encounter even occurred was completely mundane--a broken taillight. Offhand, I can only think of one other police murder case where the initial "offense" was even more benign than this--in that case, the victim flashed his brights.

Given these facts, there is a natural inclination to emphasize the racial component of these stories. This is understandable, and it is true that the victims of police killings are disproportionately black. In the Castile case, it also seems relatively certain that racial prejudices played at least some role. I find no other way to understand how a police officer can go from "that car has a broken taillight" to "the driver is going to try to shoot me".

Having said that, however, the fundamental issue here is not about race. Yes, it's true that there are racist cops. Yes, systemic racism does exist in at least some parts of the criminal justice system. And of course, we all know it's true that cops routinely get away with killing innocent black people, and face no sanctions or punishment whatsoever.

All of this is true. But on the last count, that fact is not exclusively true for black victims of police violence. Rather, the unfortunate reality is that cops almost never get punished for anything, except in the most heinous of circumstances. The primary explanation for this reality is not racism, but privilege--specifically, the extraordinary legal privileges that have been granted to cops that all but preclude their prosecution.

This is a critical distinction strategically. Focusing on the racial aspect of these stories has the effect of limiting its appeal to the usual confines of left and right. Modern liberals would line up behind Black Lives Matter while most conservatives reflexively defend police action. One side says racism is a problem, while the other denies its existence. The walls stay up, and nothing changes.

By contrast, arguing against the legal privileges of cops has much more potential appeal. I would argue this is generally true, but it definitely true right now after Clinton Email Scandal. The Clinton story has had the incredible effect of making everyone on the political right clamor for the rule of law, at least rhetorically. We discussed this case at length earlier this week, but the broad contours are straightforward:

• A powerful government official committed actions that would clearly be illegal if anyone else did them.
• The government conducts an ostensibly "independent" investigation by a different branch/agency into the official's conduct.
• The investigation finds insufficient evidence of wrongdoing and the government official gets away clean.

There are many problems in the Clinton case. But the fundamental problem is that the government is terrible at prosecuting itself. And that problem extends from the federal government all the way down to the local police department.

This week offers a golden opportunity to help thousands of people to discover this perfectly logical connection for themselves. The question we need to emphasize is not whether we think cops are bad or racist. The question is whether or not we believe in the rule of law, whether we think that government officials should be held accountable to the same laws as everyone else. By design, those questions may as well been rhetorical.

Explicit or implicit racism can help us account for why the victims of police brutality are disproportionately. But it cannot explain why cops (and many other powerful government officials) suffer no consequences in all but the most extreme cases. That outcome stems from a justice system that gives deferential treatment to government agents, no matter what the alleged crime or who their victim may have been. Dismantling those legal privileges must be the primary focus of any reform effort, both strategically and practically.

Shorter FBI: Hillary Clinton Broke the Law, But Don't Prosecute Her

The latest in shocking but not surprising news came yesterday as FBI Director Jim Comey formally recommended not indicting Hillary Clinton for her alleged mishandling of classified information.

Given America's less-than-stellar track record of prosecuting the powerful, this outcome has been a virtual certainty for some time. Even so, the event is still important. It offers the clearest evidence to date that the rule of law does not exist. One set of rules applies to the politically connected, and an entirely different set applies to everyone else. Nothing could illustrate this fact better than the Clinton email scandal.

Invalid Defenses
Before getting into the details on this issue, it's worth addressing a few of the common counterarguments that are offered in defense of the good Secretary.

Overclassification
The idea here is that a lot of information in government is classified for no reason. Thus, some defenders of Hillary Clinton--including President Obama himself--implicitly acknowledge that Hillary may have mishandled classified information. But, to borrow Obama's phrase, "There's classified and then there's classified." In other words, since almost everything in government is classified at one level or another, it's not really that big of a deal that Hillary may have sent and received a few emails on an insecure server. Would-be hackers might have been able to access the lunch menu on Capitol Hill, but that's about it.

Of course, it is true that too much information in government is classified. However, this is beside the point. The relevant question here is whether there is evidence that Hillary Clinton broke the laws as they are, including whatever system of classification exists. And if those laws are found to be absurd and unjust and her conduct is deemed harmless, then a jury could find her not guilty on those grounds. That is not a decision for the FBI, or the Department of Justice.

It could be argued that not indicting Clinton is just, if it marked a shift towards leniency in the government's handling of these cases. That is, maybe the Clinton scandal drew so much attention to the absurdly aggressive prosecution of others who have mishandled (questionably) classified information that the government has discovered the error in its ways. If this were really true and were accompanied by an imminent pardon of Chelsea Manning and/or a lifting of threats against Edward Snowden, the Clinton recommendation could almost be cause for celebration. But there's no reason to believe this is going to happen. As we'll see later, the FBI's decision was not based on a reevaluation of the justice of these laws. The laws are just as bad as ever; the FBI simply determined that Clinton did not violate them.

A final strike against the overclassification defense is that it appears that some of the classified information in Clinton's private email really was supposed to be classified. This is why the State Department refused to publicly release 22 of the Clinton emails because the underlying information was determined to be Top Secret. Even if overclassification accounted for most of the classified information in Clinton's private email, it would not excuse these. And obviously, since the Democrats are still in power in the Executive Branch, it would make no sense for the non-release of these 22 emails to be politically motivated.

Everyone Does It
This line of argument stems from the recent damning Inspector General report on email security and recordkeeping practices in the State Department's Office of the Secretary. Contrary to popular belief, it notes that only three high officials regularly used personal email accounts to conduct official business, Secretary Powell (2001-2005), Secretary Clinton (2009-2012), and Ambassador Gration (2011-2012). According to the report, Secretary Powell used a personal email account before formal email security guidance existed in the State Department. Additionally, when Secretary Powell began his term in office, the State Department email system only permitted communication within the Department. Thus, a personal email account was his only option to communicate with people outside of the Department (foreign ministers, etc.). These same circumstances did not exist for either Gration or Clinton.

Ambassador Gration routinely used a personal email account to conduct official business and ignored repeated directions from Department security personnel to use a secure Department account. Eventually, his refusal to obey these instructions resulted in the Department initiating disciplinary proceedings against him. However, he ultimately resigned his post before the proceedings were completed.

Thus, it's simply not accurate to say that everybody did what Clinton did with regard to private email usage. One official did so when no alternatives were available and proper security guidelines were yet to be created. The other used a private email in violation of Department guidelines and so had disciplinary action initiated against him. Only Secretary Clinton stands alone, without a justification and yet still without punishment of any kind.

Additionally, even if it were true that many other political leaders had behaved similarly to Clinton as some allege, it would not matter. That would justify the other officials getting prosecuted as well, not all of them getting away with impunity. This should go without saying. After all, if you are being prosecuted for murder, saying "OJ got away with it" is not likely to help your case.

The Emails Weren't Marked Classified
It is true that most of the classified emails on Clinton's email server weren't marked classified. However, this is not nearly important as Clinton's defenders would like to suggest. Former State Department employee Peter Van Buren recently explained why this argument doesn't carry any weight:

There is no physical connection between the U.S. government’s unclassified and classified systems; you absolutely cannot email a document from the dark side to the light. Properly configured, classified systems should not allow for removable media, to lessen the chance for information transfer (one of the reasons Chelsea Manning was able to smuggle out so much classified was because his computer was not properly set up, and included a DVD burner. We still don’t know how Ed Snowden got his documents out.)

Given these restrictions, the way anyone can move information from one system to the other is what’s called “sneakernet,” after the athletic shoes. You print out a marked, classified document, and then retype the parts you like into the unclassified system. You of course do not add the marking – TOP SECRET – because that would be like robbing a bank and then sticking a sign on your chest saying “Attention Cops, I’m the Guy Who Just Robbed a Bank.” Including the classification markings would be admitting to a crime. 

So that is why Clinton’s emails had no classification marking on them even though the contents of those emails contained information that was indeed classified at the time it was transmitted. That is why the emails are a big deal, no matter what smokescreen Hillary wants to throw up.

Additionally, we have evidence of at least one instance where Clinton apparently asked her staff to do precisely this. On one occasion, Clinton's aides were having difficulty sending her talking points over the secure fax line. Clinton gave the following instructions in an email that was subsequently released to the public: "If they can’t [get the fax to work], turn into nonpaper w no identifying heading and send nonsecure."

Based on this information, it is no longer mysterious how so much classified material came to be unmarked. And since classification isn't based on how something is marked anyway, it is not at all relevant to determining whether Clinton violated the law.

With these standard objections addressed, we move on to the heart of the matter.


Double Standards
The FBI's recommendation against indicting Secretary Clinton needs to be viewed in the context of the Obama administration. As we noted in a previous piece on the Clinton scandal:

...the US has zealously prosecuted cases involving the mishandling of classified materials. This was true in whistle-blowing cases like those of Private Manning (who got 35 years in prison) or the lesser known Thomas Drake (who was indicted and had his career ruined). But it's also been true of people who just downloaded files on to personal devices, for convenience, with no intent to distribute them. There was also the case of the Navy sailor who took pictures of classified areas on his submarine with a cell phone camera and now faces up to 10 years in prison.

There's no reason to think that any of the above outcomes were just or warranted, but they did occur. And while the prosecution of whistle-blowers is a slightly different issue, the others are worthwhile comparisons. In both cases, it was not alleged that the individuals intended to distribute the classified materials. And yet in both cases, the prosecution pursued and obtained convictions against the defendants.

The Clinton case involves significantly more material and presumably far more sensitive material, given her position as the US's chief diplomat at the time. But, if the FBI's recommendation is followed, she will not even be prosecuted, let alone convicted.


The FBI's Internal Contradictions
Given its importance in this election cycle, this story was bound to be newsworthy regardless of the outcome. However, the extensive details offered by FBI Director Comey made it even more remarkable.

In essence, Comey's remarks went like this:

1. Explain what the relevant laws require for a crime to be committed
2. Explain what the investigation found, most of which clearly satisfied at least some of the requirements for a crime to be committed
3. Recommend against indicting anyways

If that sounds incredible, the details are even more bizarre. Reading the full remarks, one almost gets the impression that there were two competing drafts composed--one for indictment and one against--and then they were hastily combined to produce the finished product. So the body of the statement builds a sound case in favor of an indictment, and the conclusion attempts to awkwardly walk it back.

For example, first we learn from Comey what is necessary to justify either a felony or misdemeanor charge:

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal [email] system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

So far, so good. Given that we know from the Inspector General report that Clinton ignored Department guidance on email usage, it seems at least the misdemeanor charge would be met.

Next, Comey explains that Clinton actually had multiple private servers over the course of her tenure with the State Department. And since email records were nearly destroyed on one particular server that was decommissioned in 2013, the FBI apparently had a fun task of trying to recover the information.

Comey then moves on to give the classification statistics on 30,000 emails that Clinton and her legal team provided to the State Department for retention. In theory, these emails were supposed to be all of the work-related emails. Here's Comey:

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

So here we have another official independent body verifying that Clinton did in fact send and receive classified information on her private email system. And importantly, several of them were classified at the time of transmission. Nothing real new here, but it's worth reiterating. Now is where it gets really good (emphasis added):

The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014. We found those additional e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private e-mail domain. Others we found by reviewing the archived government e-mail accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond. 

This helped us recover work-related e-mails that were not among the 30,000 produced to State. Still others we recovered from the laborious review of the millions of e-mail fragments dumped into the slack space of the server decommissioned in 2013. 

With respect to the thousands of e-mails we found that were not among those produced to State, agencies have concluded that three of those were classified at the time they were sent or received, one at the Secret level and two at the Confidential level. There were no additional Top Secret e-mails found. Finally, none of those we found have since been “up-classified.”

So the Clinton camp supposedly provided all work-related emails (30,000 total) back to the State Department and deleted the rest as merely personal. But then when the FBI had a chance to look through some of the other emails that were not included in this batch of 30,000, they found thousands(!) more that were, in fact, work-related. A few of these newly discovered work-related emails, once again, contained classified information.

Next, the FBI Director attempts to explain why the above facts are not actually a big deal (emphasis added):

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department. 

It could also be that some of the additional work-related e-mails we recovered were among those deleted as “personal” by Secretary Clinton’s lawyers when they reviewed and sorted her e-mails for production in 2014.

The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

This raises a few important questions. First up, what exactly would qualify as evidence that "work-related emails were intentionally deleted in an effort to conceal them"? Previously, Hillary Clinton and top aides certified, under penalty of perjury, that all government records (work-related emails) had been returned to the government. Now, we know that thousands of such emails were missing.

Fortunately for Clinton, she has a much better technical support team these days. After making the decision which emails were "private" and which were work-related, her team permanently deleted all "private" emails. As a result, the FBI has no way of knowing for sure whether Clinton's team explicitly deleted emails that were work-related or not. If this could be proved, this would seem to invalidate Hillary's previous certification and possibly constitute the crime of perjury. But since everything was wiped clean, we'll probably never know.

With all of this evidence produced, Comey offers the following summary (emphasis added):

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

 ...

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

Here, Comey is moving the goal posts. He ultimately justifies the decision not to recommend an indictment based on the fact that they could not find adequate evidence of intent. But earlier in this very same presentation, Comey explicitly stated that intent is not required. Recall that this is how he framed the potential violations being investigated (emphasis added):

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal [email] system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

According to Comey, in order for Clinton's actions to rise to the level of a felony, gross negligence is all that is necessary. Thus, we are left to wonder what exactly is the difference between being "extremely careless" and "grossly negligent"? Apparently, one gets you a free pass, while the other gets you indicted for a felony. Adverbs matter.

Summing Up
While the FBI's recommendation on Clinton is clearly disappointing, it should not be surprising. The case for indicting Clinton for mishandling classified information is overwhelming. None of the defenses offered stand up to scrutiny, and Clinton's public statements on the subject have repeatedly been proven false as new information emerges. But the decision of whether or not to indict Hillary Clinton was never going to be based on the evidence or the law. In reality, powerful, politically-connected people like Clinton are immune to both. This week, the FBI reminded us of this fact in the clearest terms possible.

Nebraska Passes Law Severely Restricting Civil Asset Forfeiture

The governor of Nebraska just signed in a law that almost entirely eliminates the practice of civil asset forfeiture in the state. If you believe in the idea that people should be considered innocent until proven guilty by the courts, then this is great news.

Civil asset forfeiture is a harmless-sounding phrase that actually represents one of the worst things that government does (domestically, that is). In a nutshell, civil asset forfeiture refers to the practice where law enforcement confiscates someone's assets, regardless of whether they have been charged or convicted of a crime, and then is allowed to use a share of the proceeds from the assets to support their own department. If a victim (i.e. the person whose assets were confiscated) wants to get their property back, they have to prove that the property was not derived from criminal activity. Or, in other words, they have to prove innocence, instead of requiring the courts to prove guilt.

If this seems a little backwards, it should. And like many bad and harmful ideas, this one is usually justified in the context of the War on Drugs. The basic idea is that this will allow cops to cut off the resources from the "bad guys". And in a perverse way, there's actually some logic here. Obviously, most drug transactions, being transactions, are voluntary. There is a seller and a buyer, and as long as no force or fraud is involved in the process, it's a voluntary exchange between two parties that both get something they want, just like any other transaction in the marketplace. While that would seem like a good thing, it creates a problem for law enforcement. Obviously, if both parties to the sale benefited, neither has a compelling reason to report the other to law enforcement for breaking the laws on drug prohibition. This, in turn, makes it harder for law enforcement to find and prosecute these people. It also happens to make the illicit drug industry more profitable, since the likelihood of being caught is relatively low. (We've also previously commented on the less-than-intuitive fact that illegal nature of drugs also directly increases profitability from the drug trade for people that are willing to participate in violence.)

Now, the correct and rational response to the problem outlined above is to stop trying to enforce drug laws. They are the quintessential victimless crime, and whatever harm drugs may do, that harm is confined to the user, is demonstrably not prevented by making them illegal, and is, frankly, none of anyone else's business besides the drug-seller and drug-consumer.

Unfortunately, law enforcement, and government generally, do not have a strong track record for favoring libertarian solutions. Civil asset forfeiture is one of the alternative solutions they have come up with instead. So it's hard to prove that a suspect has committed a drug crime, eh? Well, let's just take their money and assets, and make them prove they're innocent instead! What could possibly go wrong?

The answer, it turns out, is quite a lot. Innocent people get swept up in the scheme all the time. And rather than recounting the details here, I'd recommend this excellent (and thankfully non-partisan) segment from Jon Oliver on Last Week Tonight.

On the plus side, Nebraskans have just taken bold action to limit civil asset forfeiture. And for the details on that, check out this quick write-up from Reason.

Nebraska Ends 'Civil' Police Forfeiture Process, Will Require Convictions

The Curious Difference Between Classified and Classified, According to President Obama

President Obama rightly raised a few eyebrows recently when he chose to weigh in on the Hillary Clinton email situation. In an apparent effort to downplay the episode, Obama said, "There's classified and then there's classified." Obama then went on to explain the important difference:

There’s stuff that is really top-secret Top Secret, and there’s stuff that is being presented to the president or the secretary of state that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.

Undoubtedly, he is correct about this. The US Government classifies all kinds of harmless and/or publicly known information. The US Government also has a history of prosecuting people when they mishandle classified information, mundane or otherwise, even when there's no evidence of harm or intent to distribute the information. Obviously, neither of these is a good thing. The US shouldn't classify items that are in the public record or holiday email greetings, or any number of either minor things. And if one of those things accidentally gets carried off-base by a government employee, they shouldn't have their career or life ruined over it. Surely, these are things we can all agree on.

But we should also agree that they're irrelevant to the question at hand.

What Obama is effectively doing here is providing Hillary Clinton with political cover. Instead of making it a question of whether she violated the law and should be held accountable, he's framing it as an incredibly tedious episode of bureaucratic bickering on classification. "Well, you see 'top-secret' is for... while 'confidential' is just for things like"--please, please make it stop. The goal seems to be to make the issue so fantastically boring that everyone just gives up so they don't have to waste five more minutes trying to understand the cluster that is government classification. And frankly, it's probably going to be a pretty effective strategy.

We must fight the urge to tune it out, however, because this story actually does matter. Not because her server was clearly vulnerable and now the fiendish Chinese (or is it the Russians this week?) have access to America's most important secrets. On the contrary, judging from some of the foreign policy decisions Hillary championed while in office, it seems clear that she did not have access to uniquely valuable or even reliable information.* That's not why it's an issue.

Rather, it matters because it's another public test for the rule of law in the US--whether there's one set of laws that applies to the unconnected, and another set of rules that applies to the powerful. We've failed this test in the last few rounds, and President Obama's latest remarks are an unfortunate sign that this trend is likely to continue.

For more on this story and the implied double standard here, check out Trevor Timm's analysis at the Columbia Journalism Review:

Obama admits that "Top Secret" is not always so secret

*For what it's worth, we should note that the Hillary Clinton email cache included, thus far, at least 22 emails that were deemed so secret that they had to be withheld from the general public. It may be the case that those have been erroneously classified as the Clinton campaign contends. But given that the overwhelming majority of her emails have been released, it seems plausible to assume there is something different about them. I'm sure they still wouldn't destroy America if they got out, but it they do offer more support to the idea that Hillary broke the rules in a non-negligible way.

Clinton Email Scandal Update

Today, we're recommending a new article on the Clinton email scandal. And given that that's our subject for the day, I almost feel compelled to begin this post with an apology. I know this issue has been in the news for what seems like forever. And, just as important, all the wrong people are talking about it. If Fox News and Congressional Republicans are both trying to make a big deal out of something, how important could it really be?* Is this just Benghazi 2.0?

I understand that sentiment entirely. But this is one of those rare cases where political opportunism happens to align with reality. The Clinton email scandal actually does matter. But it's not because it might tell us how she failed to micromanage security in Benghazi or whether it might reveal a previously undisclosed sense of humor. It matters because we now know, from the State Department itself, that she broke the law.

Near the end of January, the State Department requested an extension to delay releasing the final emails on account of snow storms on the East Coast. The goal was to delay the release to the end of February, coincidentally after many states in the Democratic Primary had already voted. Since this move was so obviously political, it seemed like kind of an odd move--an act of desperation.

Thankfully, the extension request was denied, and we learned that the State Department had saved the best for last. The State Department declared that it had to withhold some of these emails because they actually did contain confidential or top-secret information.

This is important because the US has zealously prosecuted cases involving the mishandling of classified materials. This was true in whistle-blowing cases like those of Private Manning (who got 35 years) or the lesser known Thomas Drake (who had his career ruined). But it's also been true of people who just downloaded files on to personal devices, for convenience, with no intent to distribute them. There was also the case of the Navy sailor who took pictures of classified areas on his submarine with a cell phone camera and now faces up to 10 years in prison.

Now the point here is not to defend the often harsh treatment meted out to the others. I don't think justice was served by sentencing Manning to 35 years, and I don't think it would be served if Hillary Clinton was assigned to the cell next door. But it now seems pretty explicit that she broke the law. And if the laws are going to be applied to ordinary people, they need to be applied to powerful people as well.

That's the reason the Clinton email server really matters. It's another test of whether America has the rule of law when it comes to the politically connected. And after the failure to prosecute anyone powerful for the torture program and the spate of police brutality cases that have gone unprosecuted, the rule of law could really use a win.

For more on the ins and outs of this story, check out the following write-ups from Judge Andrew Napolitano at Reason.com. He's more optimistic than I am about the prospect of an actual prosecution, but he does an excellent job laying out the relevant legal considerations.

https://reason.com/archives/2016/01/14/two-smoking-guns

https://reason.com/archives/2016/02/04/sources-methods-and-lives

*To be fair, I would also apply this general rule to the other side of the aisle as well. That is, if MSNBC and President Obama are both deeply focused on a cause, chances are it's not very worthwhile.

Progress Toward Closing Guantanamo: Ten More Prisoners Released

During President Obama's State of the Union address, he recommitted to his campaign promise to close Guantanamo Bay. And yesterday, he took a significant and welcome step toward this goal by releasing ten more Yemeni prisoners to the country of Oman. For those keeping score at home, this brings the remaining prisoner population down to 93.

This is undeniably good news, and President Obama should be applauded for it. But we should be careful to point out that Obama's stated reasons for closing Guantanamo leave something to be desired. In his State of the Union address, this was the rationale he offered:

It’s expensive, it’s unnecessary and it only serves as a recruitment brochure for our enemies.

All of that is true, but he missed the key point--that indefinite imprisonment without charges is inherently unjust. He may be framing it this way for political reasons, but it presents serious obstacles down the road. If it's just the expense, does that mean it would be okay if Republicans agreed to raise taxes to pay for it? Moreover, it's part of the military, and virtually no Republicans even pay lip service to the idea of cutting that. Many Republicans also claim that Guantanamo is necessary, so simply declaring it otherwise is hardly persuasive. And finally, most conservatives, and--depending on the speech, often Obama himself--reject the idea that terrorism is a reaction to US policies. Thus, we see that all of these arguments are easily countered by opponents using the same rhetoric they already use. This does not bode well for the future success of this effort. It also makes it possible for Obama to continue many of Guantanamo's most appalling features in the name of political expediency. Indeed, that appears to be the plan. More on this later.

The ten newly released prisoners had already been cleared for release some time ago. But the history of Guantanamo Bay has proved that getting cleared for release and actually being released are very different things. After this most recent release, there are still 34 men that remain in prison at Guantanamo, despite being cleared for release. Most or all of these had been cleared for release as early as 2010 and in some cases, even earlier than that. But due to the challenges of repatriating prisoners to unstable countries (like Yemen) and a combination of political obstruction (mostly from Republicans) and indifference (from just about everyone else), even the cleared prisoners have remained stuck in prison.

On its face, this is appalling. But it's made even worse when you realize what it means to say they have been "cleared for release." This does not mean that there just wasn't sufficient evidence to prove them guilty, but we all know the bastard did it, whatever "it" was. That's possible under our regular criminal justice system, but not at Guantanamo. The prevailing legal system in place at Guantanamo essentially switches the burden of proof to the defendant. Instead of innocent until proven guilty, it is guilty unless proven innocent. So when we say the prisoners were cleared, it doesn't just mean not guilty; in most cases, it means there was no reason to imprison them in the first place.

Since we're on the subject, it's worth clarifying what happens to the people that can't be proven innocent. They fall into two categories. If there's enough admissible evidence of wrongdoing, they may get charged for crimes and prosecuted, most likely in the military courts. But since the US tortured a lot of people at Guantanamo, most evidence is inadmissible and few people fall into this category. Instead, a new and nefarious legal classification was created and legitimized by the Obama Administration. In the words of the White House Press Secretary, these are the people that "too dangerous to transfer and...cannot be effectively prosecuted by justice system." That is, there isn't enough evidence to win a conviction, but they're still really dangerous. In a society that really believed in the rule of law, there's a far simpler label that would apply to such people: free to go. But as it stands, this group (estimated to be 27) is destined to be imprisoned forever, without ever being charged with anything. The existence of this group may explain why Obama is not making a moral or legal case against Guantanamo--because members of his Administration plan to continue the same abuses, just at a different facility located on the US mainland.

So the news out of Guantanamo today is some of the best news we've heard in a while on this issue. Ten innocent people are going to get to start rebuilding their lives, and the US is that much closer to closing the facility for good. But we should remember that the fundamental issue was never really Guantanamo; the problem was indefinite detention. And unfortunately, that problem looks like it is here to stay.