Category: reason

The Coffey County, Kansas, health department will be hiring an outside nurse to administer COVID-19 vaccines after all of the nurses on staff refused to give the vaccine. “It’s a new technology,” health department administrator Lindsay Payer told county commissioners. “We’ve never seen it before. It was only studied in 45 people before it was approved. … That’s widely known, and it’s somewhat discomforting to a nurse who has to put that in people’s bodies.” Dr. Jeff Sloyer, the county medical officer, says that’s all BS. “Both of these vaccines were very well studied,” Sloyer said. “The Pfizer one had over 40,000 people in their trial, and the Moderna one had 30,000 people in their trial.”

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On his way out the door this morning, President Donald Trump approved 143 clemency petitions, including 70 commutations for nonviolent offenders, most of whom were convicted of violating federal drug laws. The recipients include several people who received life sentences for nonviolent drug offenses. Among them: Michael Pelletier, who went to prison in 2007 for importing marijuana; Craig Cesal, a first-time offender who was imprisoned in 2003 for repairing trucks that were used to distribute marijuana; and Darrell Frazier, who was sentenced in 1991 for his role in a cocaine trafficking operation.

Trump’s last batch of pardons and commutations, like the previous rounds, is apt to be criticized on the grounds that he chose most of the recipients for personal or political reasons. After Trump announced 46 pardons and commutations before Christmas, Harvard law professor Jack Goldsmith reported that 85 of the 94 clemency recipients up to that point had “a personal or political connection to Trump.” The New York Times says Trump has “made clear his willingness to use his clemency power on behalf of allies, supporters, people he perceives as victims of prosecutorial overreach and people who forge connections to him and his team.” Leaving aside Trump’s blatantly self-interested mercy for cronies such as Roger Stone, Paul Manafort, Michael Flynn, and Steve Bannon (who was pardoned today), I think this sort of criticism is misplaced for several reasons.

First, the focus on Trump’s motivation obscures the crucial question of whether the recipients of commutations received sentences that were grossly disproportionate in light of the conduct that sent them to prison. Whether Lavonne Roach deserved 30 years behind bars for participating in her boyfriend’s methamphetamine operation, for example, has nothing to do with how she came to the president’s attention or why he decided to commute her sentence. “I am grateful to President Trump, Jared Kushner, and Ivanka Trump for their understanding that even in these last moments, how important it was to still use the executive power to bring people home,” Topeka K. Sam, executive director of The Ladies of Hope Ministries, said in a press release. “When you look at a woman like Lavonne Roach—who, after 23 years of incarceration, is now reunited with her children—that’s nothing short of a miracle for a mother.”

Second, Trump seems to have been genuinely moved by examples of unjust drug sentences. That impulse is praiseworthy, even when it is encouraged by celebrities such as Kim Kardashian West, who championed the cause of Alice Marie Johnson, the first drug offender to benefit from a Trump commutation. Johnson was a first-time offender who received a life sentence in 1996 for participating in a cocaine trafficking operation. After Trump commuted her sentence in 2018, he introduced her during his 2019 State of the Union address. She was featured in a 2020 campaign ad and spoke at the Republican National Convention last summer, after which she received a pardon in addition to her commutation.

Third, Trump’s political motive for contrasting his own record on criminal justice with Joe Biden’s long history as a fierce drug warrior does not negate his accomplishments in that area. Even if Trump commuted sentences and supported the FIRST STEP Act based largely on the calculation that doing so would increase his chances of re-election, those actions freed people who did not belong behind bars—in the latter case, thousands of them.

Fourth, the argument that it’s unseemly for Trump to commute sentences in response to appeals from people he knows and trusts can extend to absurd lengths. Thanks to Kardashian West, Trump knows Johnson. Thanks to Johnson, who has tirelessly sought clemency for other nonviolent offenders, Trump learned about many of the people whose sentences he later commuted. Are all of those cases thereby tainted?

Fifth, Trump’s arbitrariness has largely replaced the arbitrariness of recommendations from the Justice Department’s Office of the Pardon Attorney, which he circumvented in making most of his clemency decisions. Johnson never understood why she was not one of the 1,715 federal prisoners who received commutations from Barack Obama, who shortened far more sentences than any other president in U.S. history. It is hard to come up with a rational explanation for leaving someone like Johnson out. More generally, the Justice Department’s clemency review process has been plagued by bottlenecks, understaffing, delays, and inscrutable standards for many years. I’m not sure why Trump’s alleged capriciousness is worse.

It was never likely that Trump’s commutation total would come near Obama’s, which surpassed those of his 13 most recent predecessors combined. But Trump did end up issuing nearly 100 times as many commutations as Obama did in his first term (just one), and his record compares quite favorably to those of George W. Bush, Bill Clinton, George H.W. Bush, Ronald Reagan, Jimmy Carter, Gerald Ford, and Richard Nixon.

Johnson understands that when it comes to winning freedom for people serving draconian sentences, what matters is getting results. “I was once told that the only way I would ever be reunited with my family would be as a corpse,” she said at the Republican convention. “But by the grace of God and the compassion of President Donald John Trump, I stand before you tonight, and I assure you I’m not a ghost. I am alive. I am well. And most importantly, I am free….When President Trump heard about me, about the injustice of my story, he saw me as a person. He had compassion, and he acted….There are thousands of people just like me who deserve the opportunity to come home.”

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“If I’m your president,” Joe Biden promised at the Democratic National Convention last summer, “on Day One we’ll have a national mask mandate.” Now that Biden is being sworn in as president, his policy has changed from a general requirement to an executive order that applies only on federal property and interstate transportation.

While supporters of a nationwide face mask mandate to combat COVID-19 may be disappointed, constitutionalists should be pleased. The switch is a hopeful sign that Biden acknowledges limits to presidential power, even during a public health emergency.

Until he backtracked in September, Biden had been promising that he would “do everything possible” from “an executive standpoint” to “make it required that people had to wear masks in public.” Outgoing President Donald Trump criticized that plan, saying Biden “wants the president of the United States, with the mere stroke of a pen, to order over 300 million American citizens to wear a mask.”

Trump noted that Biden “does not identify what authority the president has to issue such a mandate.” He warned that it would violate federalism by “stepping on governors throughout our country.”

As Biden now admits, Trump was right. Yet Trump’s defense of constitutional limits sat uneasily with his administration’s nationwide moratorium on evictions, which the Centers for Disease Control and Prevention (CDC) purported to impose in September under the authority granted by the Public Health Service Act.

A regulation issued under that statute says the CDC’s director may “take such measures” he “deems reasonably necessary” to stop the interstate spread of communicable diseases, “including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” The CDC argued that evicting tenants who fail to pay their rent would promote the spread of COVID-19 by forcing many of them to “become homeless” or “move into close quarters in shared housing.”

As South Texas College of Law professor Josh Blackman noted, such a broad reading of the CDC’s authority was highly implausible in light of the specific examples cited in the regulation on which the agency was relying. George Mason law professor Ilya Somin likewise warned that the eviction moratorium undermined property rights, federalism, and the separation of powers.

If the CDC can, in the name of disease control, force landlords to house people who do not pay their rent, it can impose pretty much any requirement under that heading—including the mask mandate that Biden now agrees cannot be imposed by the executive branch. Last month Congress extended the eviction moratorium until the end of January, which at least avoids the separation of powers problem, and Biden wants Congress to renew the moratorium through September.

Many critics of the Trump administration’s COVID-19 policies think the federal government should take a more assertive role. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, complains that “the states are very often given a considerable amount of leeway in doing things the way they want,” while The New York Times blames the COVID-19 death toll on the lack of “a unified national strategy,” which it says led to a “fractur[ed]” response.

At bottom, that critique is an objection to the American system of government. Under the Constitution, the federal government is limited to specifically enumerated powers, which do not include a general authority to protect the public from communicable diseases.

That responsibility lies primarily with the states, which retain a broad “police power” that goes far beyond the authority vested in the president or Congress. Federalism leaves most decisions in this area to officials who are more accountable and more familiar with local conditions, allows instructive policy experimentation, and avoids concentrating power in a national government whose response to COVID-19 has been characterized by striking incompetence, bureaucratic intransigence, bewildering inconsistency, and lethal foot dragging.

I’m not sure that Biden’s retreat from a nationwide face mask mandate means he appreciates the wisdom of that design. But I hope so.

© Copyright 2021 by Creators Syndicate Inc.

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In this episode, I interview Jane Bambauer on the failure of COVID-tracking phone apps. She and Brian Ray are the authors of “COVID-19 Apps Are Terrible—They Didn’t Have to Be,” a paper for Lawfare’s Digital Social Contract project. It turns out that, despite high hopes, the failure of these apps was overdetermined, mainly by twenty years of privacy scandalmongering and regulation. In essence, Google and Apple set far too strict rules for the apps in an effort to avoid privacy-based political attacks, and the governments that could have reined them in surrendered instead, also in order to avoid privacy-based political attacks. So, we have no one to blame but ourselves, and our delusional valuation of privacy over life itself. Sometimes, privacy really does kill.

In the news roundup, we discover that face recognition suddenly isn’t toxic at all, since it can be used to identify pro-Trump protestors.  Dave Aitel explains why face recognition might work even with a mask but still not be very good.  And Jane Bambauer reprises her recent amicus argument that Illinois’s biometric privacy law is a violation of the first amendment.

If you heard the part of episode 344 last week about Silicon Valley speech suppression, you might be interested in seeing a further elaboration of proposal I came up with then, now  a Washington Post Op-Ed. Meanwhile, Dave reports that Parler may be back from the dead but dependent on Russian infrastructure. Dave wants to know if that means Parler can be treated by the Biden team like TikTok was treated by the Trump administration.

Dave also brings us up to speed on the latest SolarWinds news. He also casts a skeptical eye on a recent New York Times article pointing fingers at JetBrains as a possible avenue of attack. The story was anonymously sourced and remains conspicuously unconfirmed by other reporting.

Not dead yet, the Trump administration has delivered regulations for the exclusion of risky components from the national IT and communications infrastructure. Maury Shenk explains the basics.

Speaking of which, China is getting ready to strike back at such measures, borrowing the basic blocking statute rubric invented  by the Europeans. Blocking statutes can be effective, but only by putting private companies in a vise between two inconsistent legal duties. Bad news for the companies, more work for lawyers.

I ride one more hobbyhorse, critiquing Mozilla’s decision to protect “user privacy” while imposing new burdens and risks on enterprise security. The object of my ire is Firefox’s Encrypted Client Hello. Dave corrects my tech but more or less confirms that this is one more nail in the coffin for CISO control of corporate networks.

Matthew Heiman and I dig into the latest ransomware gang tactics—going after top executive emails to raise the pressure to pay. The answer? I argue for more fake emails

In our concluding quick hits, Maury tells us about the CNIL’s decision that privacy law prevents France from using drones to enforce its coronavirus rules. I note a new FDIC cybersecurity rule that isn’t (yay!) grounded in personal data protection. Maury explains the recently EU advocate general’s opinion, which would probably make Schrems II even less negotiable than it is now.  If it’s adopted by the European Court of Justice, which I argue it will be unless the Court can find some resolution that is even more anti-American than the advocate general’s proposal. And, finally, Matthew tells us that the State Department has reorganized to deal with cyber issues – a reorganization that may not last longer than a few months.

Download the 345th Episode (mp3)

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I can’t say I’ve ever fully trusted the Times to be accurate, but until recently I generally felt fairly confident that even if a story was slanted in perspective, the facts that were reported were basically accurate. Not anymore.

For example, here is the Times yesterday, in a news story on the front page: “For months, Republicans have used last summer’s protests as a political catchall, highlighting isolated instances of property destruction and calls to defund the police to motivate their base in November.” (emphasis added)

As I’ve noted previously, the property losses from the riots and looting last summer were on a par with the Los Angeles riots of 1992 and the totality of the 1960s urban riots. They included nightly riots in Portland, the destruction of a several blocks of Minneapolis, the establishment of a lawless anarchist zone for twenty-three days in Seattle, and riots in cities all over the country. I was in Omaha last summer, and I was surprised to find that the downtown was full of boarded-up shops whose windows had been smashed. A good friend from Albany, NY was just telling me about property destruction and looting there. I mention these because they did not make the national news, but there are many other examples from New York to Los Angeles.

In short, if I read this article in the Times and believed it, I would think there were just a few isolated incidents where property was destroyed last summer, and I wouldn’t even know who undertook the destruction. If the Times had tried to convey the facts, it would have instead stated something like that the Republicans highlighted “the most destructive riots in decades, causing various levels of chaos and destruction in cities across the country, that grew out of the protests, mostly peaceful, over George Floyd’s death.”

In any event, the fact that I could read an article like this one and wind up *less* informed than I was when I started is why I don’t trust the Times anymore. I’m hoping that once Trump is out of the way, the Times’ reporters and editors no longer feel to skew their coverage for fear of helping Trump the way their coverage of Clinton’s emails in 2016 may have helped him, but I have the feeling this is an indefinite change for the worse.

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