My colleague Jessica Vaughan has published a look at the resurgence of the hyper-violent MS-13 gang over the past five years or so. It’s striking how conventional immigration enforcement is an important tool in battling this kind of threat. Vaughan writes that the Bush administration’s Operation Community Shield used immigration law as a key means of disrupting the gang’s activities; as she notes,
Documented gang members often were arrested on administrative immigration violations, which had the effect of disrupting the gang’s activities and ridding communities of troublemakers. In addition, these lower-level arrests often led to more significant criminal investigations of gang leaders and the dismantling of local MS-13 cliques.
Then came the Obama administration, which prohibited ICE agents from taking into custody any illegal aliens, even known gang members, for minor offenses or immigration violations. “ICE officers were no longer permitted to arrest and remove foreign gang members until they had been convicted of major crimes.” Gang arrests by ICE dropped by two-thirds from 2012 to 2014.
At the same time, the Obama administration facilitated a huge influx of Central American teenagers across the border, whom it released into the United States. The result? “Beginning in 2015, law enforcement agencies across the country began to express concerns about the renewal of MS-13 activity in a number of locations.” Among the locations experiencing the scourge of a revived MS-13 are the Washington, D.C., area and Long Island, N.Y.
As with Giuliani’s accession in New York, the Trump administration is reversing the feckless non-enforcement policies of its predecessor. But one thing stands in the way of successfully restoring order to the immigration system — local and state sanctuary policies. Until the neo-Confederate sanctuary jurisdictions are brought to heel, it will be difficult to contain not only ordinary illegal immigration but also the transnational crime that uses immigrant communities for cover and recruitment.
Over at Reason, Jacob Sullum has written a thoughtful critique of my piece last week asking conservatives to consider gun violence restraining orders (GVROs) as a tool to combat spree killings. As I outlined in my piece, a GVRO empowers a person in a close relationship with a gun-owner to seek a court order that allows police to temporarily seize guns when there is evidence that the gun-owner is a danger to himself or others.
A good GVRO statute should clearly protect the gun-owner’s due process rights by, among other things, establishing a high burden of proof (clear and convincing evidence, preferably), allowing the gun-owner to contest the claims against him, and confining the universe of people who can seek a GVRO to people in defined relationships with the gun-owner.
The piece has generated an enormous response, most of it positive. GVROs, unlike most gun-control measures, are not only narrowly-targeted (and thus avoid the collective punishment of gun control measures like assault weapons bans or bans on high-capacity magazines), they arguably could have prevented a number of mass shootings, including the Parkland, Florida, school massacre.
Sullum, however, takes aim at the concept — on three main grounds. First, he contests the notion that a GVRO could have stopped the Parkland attack. Second, he argues that the state GVRO statutes that actually exist don’t properly safeguard due process, and third, he believes even a properly-drawn GVRO law will be too vulnerable to abuse. Let’s take each argument in turn.
We obviously can’t know if a GVRO law would have prevented the Parkland shooting. Counterfactuals are impossible to adjudicate. However, in this case there is a compelling piece of evidence that a proper GVRO could have saved lives. The FBI statement confessing its failure to properly follow protocol in response to a tip about the Parkland shooter contained this haunting paragraph:
On January 5, 2018, a person close to Nikolas Cruz contacted the FBI’s Public Access Line (PAL) tipline to report concerns about him. The caller provided information about Cruz’s gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting.
If the person “close to Cruz” was close enough fit within the GVRO law, he (or she) had exactly the kind of information that could have secured a restraining order, and he wouldn’t have had to rely on a federal bureaucracy to take action. He could have stated his case directly in front of a local judge. He would have been far more empowered to intervene.
Sullum’s second major point — where he notes the deficiencies in various state GVRO laws — is sound. They do not sufficiently protect due process, offering fewer protections than I proposed. GVRO statutes need conservative and libertarian input to limit and control for the most obvious avenues for abuse. Not only do they need conservative and libertarian input, they require study. California’s law has been in place since 2016. We should examine carefully the circumstances where it’s been used. We should study other states’ experiences as well. Real-world experience ultimately can and should inform both our hopes and our fears.
Finally, Sullum expresses reservations about well-crafted GVROs, writing:
Even if David French gets to write the law, there is much potential for abuse by malicious or mistaken petitioners, abetted by judges who will be inclined to err on the side of what they believe to be caution by revoking the Second Amendment rights of possibly dangerous people. And whatever the standard of proof, it relates not to the actual commission of a crime that has already occurred but to the possibility that the respondent might commit a crime (or commit suicide) in the future. Under these laws, people can lose the constitutional right to armed self-defense if a judge thinks they probably pose a “significant danger” to themselves or others. Conjoining those probabilities means the vast majority of people covered by these orders would never have used a gun to harm anyone.
Here’s where we part company. A properly drawn statute will require admissible evidence — that means sworn statements, pictures of text messages, instagram photos — combined with an opportunity to contest the charges. Further, it will impose a burden of proof well above “probably.” And it’s hardly unusual for courts to adjudicate and control for risks of potential future harm. They do so all the time when determining whether to confine the mentally ill or to issue restraining orders against estranged partners or spouses. This is well-trodden judicial ground.
Moreover, GVROs are less restrictive of a person’s rights than the common orders mentioned above. A person subject to a GVRO isn’t involuntarily confined. They can still see their children. They can still go to school. They can still live with their spouse. And unless the petitioner can keep producing clear and convincing evidence of a significant risk, the order will lapse. In fact, even in California the vast majority of GVROs are not extended.
Every single legal proceeding ever devised is subject to abuse. Smart legislators limit the potential harm with clear evidentiary standards, clear standards of proof, and rights of appeal. A properly-drafted GVRO would contain all those elements. It’s time to put the laboratories of democracy to work. Let’s see a well-drafted GVRO, and let’s study its effect. Given the number of mass shooters who’ve exhibited warning signs, it’s one of the few proposed reforms that could actually stop a killer before he walks, armed, through that schoolhouse door.
If only Joe McCarthy had lived to see this moment, when it’s suddenly in vogue to attribute large-scale events in American politics to the hand of Russia and to inveigh against domestic subversion….
The Russians wanted to boost Trump, but as a Facebook executive noted, most of their spending on Facebook ads came after the election. The larger goal was to sow discord, yet we had already primed ourselves for plenty of that.
Does anyone believe, absent Russian trolls on Twitter and Facebook, that we were headed to a placid election season involving an incendiary, mediagenic former reality TV star bent on blowing up the political establishment and a longtime pol who had stoked the enmity of Republicans for 30 years and was under FBI investigation?
When it comes to the U.S.–China military balance, I take my cues from esteemed National Review contributor Jerry Hendrix, who has been a marvel of productivity these past few weeks. But I thought I’d weigh in on the most recent Military Balance report released by the Institute of Strategic Studies, which should make our defense planners very nervous. The pace of China’s military advancement is picking up, and it’s not clear the Trump administration and Congress are sufficiently alarmed.
As reported in a recent Economist article, over the last several years, China has made good use of its military budget, which has grown in step with GDP by 6 to 7 percent a year. For example, in no more than two years, China will have its own stealth combat aircraft, which will end the United States’ monopoly on the technology. It is also upgrading its air-to-air missiles, to the point where they will soon be comparable to the best missiles in the West. And finally, firms in China are working to develop quantum computing to better crunch big data and secure its communications. Such technologies may seem far off, but in fact, China already launched its first quantum satellite in 2016.
All this spells trouble for the U.S. and its allies. “Since the end of the Cold War, the air domain has been one of assured superiority for the United States and its allies,” the Military Balance report suggests. “This dominance, however, rests on weapons and technologies that China and Russia are increasingly attaining as part of a broader effort to counter U.S. capabilities, and to deny US and allied forces unimpeded control of the air.”
In turn, for the U.S.-led alliance to regain air dominance, it will have to commit funding on a level “not required since the end of the Cold War.” Even then, dominance will likely be fleeting without continued investment, as Stephen Biddle and Ivan Oelrich argued in an authoritative 2016 International Security article. To make things more complicated, when Chinese Premier Xi Jinping asks the Chinese public and private sectors to work on advanced military projects, it’s an offer that can’t be refused. In the U.S., however, Silicon Valley can simply say no. The only want to ensure we can keep up is to spend and, if we can’t stomach rising deficits, tax.
There’s an interesting new paper discussed here by Mark Perry at AEI about an international phenomenon called the “educational-gender-equality paradox — the greater the degree of gender equality among 67 countries studied . . . the lower the female share of STEM college graduates.” As The Atlantic puts it, “In countries that empower women, they are less likely to choose math and science professions.” It’s about choice, then, not discrimination.
I don’t expect this to diminish the incessant politically correct demands for no gender imbalances in the STEM professions (or anywhere else, for that matter), and that if we have to have quotas to achieve this brave new world, then bring them on. This is nothing new, alas: I criticized that mindset in this very context years ago on NRO here. If we need more STEM graduates, it’s unlikely that this is a problem caused by discrimination or that it makes sense to focus on sex in trying to solve it.
National Review is accepting applications for its summer editorial internship. The intern will work in our New York office, receive a modest stipend, participate in every part of the editorial process, and have some opportunities to write. The ideal candidate will have an excellent academic record and some experience in student or professional journalism. If you wish to apply, please send a cover letter, your résumé, and two of your best writing samples (no more, please) to editorial.applications (at) nationalrevew.com. (Please note: This internship is separate from internships offered by National Review Institute, as well as a business and publishing internship that will be advertised separately.)
Professor Stephen Carter and Ken White (of the Popehat website) have written two columns raising a point that has bothered me for a long time. Thanks to Instapundit for the links.
The point is this: The police agencies of the federal government can, and do, charge people for lying to them in the course of a criminal investigation, even when the agencies cannot prove the crime they are investigating, and even it turns out that there was no crime at all. The law that permits this is Section 1001 of Title 18, which makes it a crime to:
“knowingly and willfully . . . make any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government.
As Carter and White note, Section 1001 allows the federal government to bootstrap itself to conviction of a person who had done nothing wrong, or nothing criminal anyway, until the government talked with him.
It’s happening more and more. The FBI gathers information about a person, finds facts that the person might want to conceal — not because the facts prove a crime but because they are embarrassing for some other reason — then asks about those facts in an interview, on the expectation that the person will lie and thereby incriminate himself.
This strikes me as quite wrong.
The whole process smacks of entrapment. In such cases, the law-enforcement officers are actually hoping to generate a crime. They want people to lie to them; in fact, they are highly trained in the art of getting the interviewee to tell a lie when he didn’t intend to.
There are enough real crimes and real criminals without the government deliberately creating new ones. In fact, the government might be able to focus better on catching people who are actually dangerous — like this person, for example — if it wasn’t using its resources to get people who were innocent until they made the mistake of talking with representatives of their government.
The short of it is that federal agents and prosecutors are supposed to target crime; Section 1001 encourages them to target people. It allows them to investigate with the intent of putting some target in jail even if the investigation reveals no crime.
It’s especially unfair because it takes advantage of the widespread belief that lying to the police or prosecutors is not a crime unless it occurs under oath. Why, the average person naturally thinks, does the government make perjury a crime if lying to federal authorities in any context is already a crime?
I’ll go further and say that Americans may be forgiven for believing that lying during interactions with the police is almost a time honored national tradition. The police can and do deceive suspects in order to elicit incriminating admissions. And most of us grew up watching criminal-justice shows on TV, where otherwise innocent people routinely deceive the police without being arrested for it. (I will date myself and admit that I am a fan of the old Perry Mason show, where everybody lied, all the time; one of Mason’s constant complaints was that his own clients wouldn’t even tell him the truth.) And in fact you can lie to local and state police without committing a crime; as far as I know, it’s only the federal government that punishes lying to its agents.
I am not of course defending lying — it’s prohibited by a power Who outranks me considerably — but the point is that average people believe, and quite reasonably, that outside the courtroom they can try to deceive the police without thereby subjecting themselves to prosecution. In fact, I would wager that even most lawyers, if they do not practice federal criminal law, believe that lying to federal agents in the course of an interview, without more, is not a criminal offense.
It might be, and usually is, stupid to lie to the police. It encourages them to believe that you may be hiding a crime, and it can be used to impeach the liar if and when he gets on the witness stand. But by itself it should not be a crime.
Moreover, Section 1001 discourages people from cooperating with federal agents. The natural impulse of most innocent people is to help the FBI or other federal police agencies. That is an impulse a sane criminal-justice system should want to encourage. To the extent people come to understand that simply by answering questions they are exposing themselves to legal risk, they will refuse to do the interview. Ken White already advises his clients never to talk voluntarily with agents of the federal government. If I were still practicing law, I would do the same.
That makes Section 1001 a trap for the unwary. Those who lawyer up as soon as the FBI calls will be protected. Those who don’t have the means to do that, or who naïvely assume that if they are innocent and cooperate with their government they will surely be safe, get caught in the snare.
So what should be done?
The cleanest thing would be for Congress to repeal Section 1001. There would still be many much fairer ways for the government to compel people to give information and to tell the truth in doing it, as for instance by empaneling a grand jury and calling them as witnesses. And Congress could still make lying a crime in specific circumstances (such as when a person is doing business with the government, which seems to have been the original intent of Section 1001) or when the lie is part of a broader conspiracy to obstruct justice.
Short of that, Congress could require federal agents to warn people, at the beginning of any interview, that they have the right not to answer any questions or to consult an attorney before they do, and that if they lie during the course of the interview they can be prosecuted even if they have committed no other crime. If that sounds a lot like the famous Miranda statement of rights, that’s because it is; but the Miranda ruling currently applies only when a person has been taken into custody.
Another alternative would be for Attorney General Sessions simply to direct the Department of Justice not to prosecute individuals for lying to federal agents, at least if the Department cannot establish that some other underlying crime justified the investigation in the first place. The downside of that is that it would only be the policy of one attorney general, subject to change as soon as he was gone.
I realize that this issue has arisen in the context of the Mueller investigation, and that therefore taking a position on the merits of it is likely to excite partisan instincts on both sides. As a practical matter, nothing is going to be done until the Mueller completes his inquiry. But when the political controversy dies down, the House and Senate Judiciary Committees should seriously examine Section 1001 with a view towards repeal or major reform. I see no reason why that inquiry should be partisan.
Maybe I’m missing something — I’d appreciate hearing the views of someone such as Andy McCarthy on the subject — but this seems to be a clear abuse, and with all due respect to the nation’s U.S. attorneys, I don’t trust prosecutorial discretion to deal with it.
Bret Stephens recently reiterated his call for repealing the Second Amendment. At Bloomberg View, I argue that this is a dead end for anyone seeking to reduce the incidence of murder or massacres.
The first step of the Stephens plan is, in other words, to get nearly everyone in the country to agree that the Constitution should not protect gun rights. He offers no explanation of how this would be accomplished. His columns amount to wishing away the disagreement he seeks to overcome.
A related mistake gun controllers make is to overestimate the practical importance of the Supreme Court’s decisions on guns notably its 2008 decision in D.C. v. Heller recognizing an individual right to own guns. Here, for example, is Democratic operative Dan Pfeiffer in an article from last October that is again making the rounds:
It is certainly true that our short-term policy positions must pass the Heller test, but it is also a major strategic error to confine our vision to a Supreme Court decision that many legal scholars find ridiculous and many generations of judges would find astonishing. Just as Republicans organize themselves around efforts to overturn Roe v. Wade, Democrats should run on changing the balance of federal courts in ways that will make it less likely that citizens will be slaughtered simply because they went to the wrong concert, movie theater, or school.
In thinking about Heller’s practical effect on gun policy, we should remember three points.
None of the policies that Pfeiffer recommends — including a national gun registry and a national gun buyback policy on the Australian model (which, presumably, means it would be mandatory)–has been adopted by the political branches and then struck down by the courts.
American gun laws were roughly as permissive as they are now, and more permissive than those of most other advanced countries, before Heller.
The Supreme Court has left open the question of whether a ban on assault weapons would violate its interpretation of the Second Amendment. It has not had to rule on the constitutionality of a federal ban because advocates of a ban have not been able to get more than 40 votes for their position in the Senate in recent years.
Judicial enforcement of the Second Amendment is simply not a major constraint on gun control. The gun-control agenda’s primary problem is political: Too few Americans have passionately supported it, and too many Americans passionately opposed it, for it to prevail.
Readers may remember the Charlie Gard gross injustice, in which U.K. courts both ordered a terminally ill baby’s life support discontinued and refused to allow his parents to take the baby to a U.S. doctor who hoped he might be able to extend the boy’s life. Eventually, the U.S. doctor said it was too late, and the parents permitted the life support to be withdrawn.
Now, in the Baby Alfie case — about which I have written here before — the same travesty is unfolding: Only this time, the hospital demands the baby’s death despite there being no diagnosis as to the cause of his neurological malady. From the BBC story:
A hospital trust prevented a 19-month-old with a mystery illness being transferred to Italy in a row over life-support treatment, a court heard.
Doctors at Liverpool’s Alder Hey Children’s Hospital believe it is in Alfie Evans’ best interests to stop “mechanical ventilation”.
His parents, Tom Evans and Kate James, disagree and want him to be moved to a hospital in Rome.
Mr Justice Hayden said no decisions would be made until the New Year.
The hospital described Alfie as being in a “semi-vegetative state”.
I guess that means minimally conscious. But whether conscious or unconscious, it is unconscionable that a hospital would both want to terminate efficacious-life extending treatment and prevent the parents from transferring the baby to a hospital willing to continue care.
Realize, the hospital wants the treatment terminated, including tube-supplied food and water, because it works, — e.g., it is keeping the baby alive — rather than because it is ineffective.
This is an example of a bioethics meme called “futile care,” in which doctors are allowed to refuse wanted treatment if they believe the quality of the patient’s life isn’t worth living.
Such coercion happens in the U.S. too. But I know of no cases here in which a family is both banned from requiring care to continue and from transferring their loved one to a different facility willing to provide continued care.
Let us hope the court in Alfie’s case both requires life-support to continue and/or allows the transfer. Forcing this baby to die when there is no diagnosis would be an act of naked medical authoritarianism.
The academic enterprise consists of the quest for truth, but as Wake Forest University professor Jim Otteson argues in this Martin Center essay, the emphasis should be more on “quest.” Today, many professors focus upon “truth” and, convinced that they have found it, begin acting in decided unprofessional ways.
Academics in fact have a dual professional responsibility. The first is to master our fields and to convey their achievements to each new generation of students. The second responsibility is to the tradition of inquiry itself, stewarding our noble profession.
That tradition of inquiry requires dispassionate teaching and research. Much too often, however, professors let their emotions take over. “We deal in thoughts and ideas, in hypotheses and conjectures, in proposals and arguments, in criticism and counter-argument. If a hypothesis or proposal seems false, our professional responsibility is to demonstrate that by the process of falsification that is the core characteristic of our profession,” Otteson writes.
Just let a student question, say, “intersectionality” in a course on women’s studies and see if he or she receives a scholarly demonstration or a burst of anger from the professor.
Otteson has himself suffered plenty at the hands of fellow faculty members who decided that they had to loathe him because his Eudaimonia Institute received some funding from the Koch Foundation.
Whenever a professor moves from dispassionate inquiry to partisan advocacy, that is a betrayal of higher education’s mission and a breach of academic professionalism. If higher education is to fulfill its proper mission and serve its proper purpose, all its members must dedicate themselves to embracing their responsibilities not as defenders of a faith, but as professional pursuers of knowledge.
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Howard Finkelstein, the Broward County public defender whose office is representing Nikolas Cruz, the suspect in the mass shooting in Parkland, Fla., puts it bluntly:
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